Scottish election 2021: How Scots law may be encouraging rape and sexual assault – Suzanne Martin

They say that silence speaks louder than words. But apparently not when it comes to sex.

In the context of sex, our culture views silence as provocative, alluring, even desirable. The archetypal romantic meeting is a long look across a busy room, as two complete strangers catch each other's eyes. A common stereotype of an attractive woman is someone who is coy, maybe even shy, which is the antithesis of someone who is outspoken and wordy, setting boundaries.

The problem we have is that this cultural understanding is now public understanding, and it is manifesting itself in chilling and dangerous ways in women’s lives. A research study published last week indicates that up to half of women in the UK have experienced sexual assault or rape by an intimate partner while they were asleep, and over a quarter have been subjected to this more than three times.

An absence of consent is now considered by many – mainly men – to be as good as a definitive “yes”. Couple this with a deeply ingrained sense of entitlement over women’s bodies – in particular those of intimate partners – and thousands of women find themselves being woken from their sleep by the act of sexual assault and rape.

It is physically not possible to consent to sex or sexual activity if you are asleep, or unconscious in any way. But unambiguous and unequivocal consent is not a necessity, not according to our law anyway.

The Sexual Offences (Scotland) Act states that rape is not, in fact, rape if the perpetrator had a “reasonable belief” in consent.

What is “reasonable belief”? Well, we don't know, because no definition is provided and it is left up to juries to decide if a perpetrator’s belief that they had consent was reasonable.

Adopting the idea of 'affirmative consent' to sex in law could change wider cultural attitudes to rape and sexual assault (Picture: Gareth Fuller/PA)

Is it reasonable to believe you have consent to have sex with someone while they sleep, if they are your intimate partner of many years? I say it is not. But for all the clarity our law provides, it could very well be considered reasonable.

Our laws should reflect the behaviours we expect from one another. We expect each other to be sober when driving, so we do not cause an accident on the road. We expect each other to not smoke in public places, so we do not damage each other's health.

Yet the Sexual Offences (Scotland) Act tells us that rape is OK if the perpetrator assumed consent and that assumption is considered "reasonable”. It is easy to see how our law is perpetuating harmful stereotypes about women “bringing it on themselves” and “asking for it” and, therefore, little wonder that rape and attempted rape have the lowest conviction rate of any crime in Scotland.

Consent is about choices: the choice to engage in sex, the choice not to engage in sex and the choice to disengage from sex. Women are stripped of that choice by our law and our culture, both of which give men the green light to make assumptions about a woman’s desire to engage in sex, assumptions based on what women wear, what they say and how they act.

Indeed, we live in a society where women are not just viewed as responsible for their own safety, but also responsible for the violence they experience, regardless of their lack of control over it.

It is time to change the law on sexual consent. Without changing the law, we will never be able to create the fundamental cultural shift we urgently need in order to prevent sexual violence.

The Scottish Women’s Equality Party is calling for a law which requires everyone involved in sex to proactively seek consent, and defines consent as a positive expression of agreement (rather than absence of consent, a silence). This is sometimes referred to as “affirmative consent”, and it would help to change the conversation from classrooms to courtrooms.

It would reframe receiving consent as the responsibility of each individual engaging in sex, rather placing sole responsibility for consent with one individual, the survivor, who is more often than not a woman.

It would also remove the ambiguity of consent, meaning that absence of consent (silence) could no longer be interpreted as “yes”. This would, by necessity, kick-start healthier conversations and improve our education on sexual consent.

In court it would mean that prosecuting parties would no longer have to focus on proof of lack of consent – for example, resistance – but would be able to focus on establishing if consent was sought in the first place.

Changing the law on consent would also support a wider cultural shift, if it is introduced alongside a national public campaigning effort on sexual consent. We have an excellent track record of public health and safety campaigning in the UK – look before you cross the road, don’t smoke in the company of children, get your flu vaccine. We need to apply that same national effort to ending violence against women and girls, because this is a public health crisis.

No other political party is talking about this. No other political party has even considered that our law may be perpetuating, even encouraging, rape and sexual assault. The Scottish Women’s Equality Party has considered it, and we say it is.

We are contesting the Holyrood election to change the law on sexual consent. Whether we win a seat or not, we will work on a cross-party basis to prevent sexual violence, not just manage it.

Suzanne Martin is a Scottish Women’s Equality Party candidate on the Glasgow list

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