Under the Abusive Behaviour and Sexual Harm Bill, judges would be required to tell jurors there can be “good reason” why a person may delay reporting a sexual crime or did not offer physical resistance, if it is relevant to evidence heard in court.
The proposed legislation will also criminalise “revenge porn’ – those who share intimate images without a person’s consent – and will introduce a statutory domestic abuse aggravator to ensure courts take this into account when sentencing.
Both the judiciary and the Law Society of Scotland have questioned the need for jury directions.
During a debate in the Scottish Parliament yesterday, Tory MSP Margaret Mitchell said the provision remained the most “contentious” part of the legislation.
She said: “At the very least, more research must be carried out before such a dramatic provision be enforced.
“I consider it could be a dangerous and unwelcome precedent by eroding the jury’s discretion and the division of power.”
But Labour MSP Elaine Murray said jury directions were needed to combat misconceptions among the public.
She said: “Juries are made up of ordinary people. We don’t need to carry out a lot of research to know the general public hold misconceptions about sexual offences.
“Unfortunately, a lot of people still think a woman’s behaviour can contribute to offences committed against her.”
Lib Dem MSP Alison McInnes said her initial misgivings about jury directions had now been replaced with the belief they were a “sensible safeguard”.
Judges and lawyers have spoken out against the introduction of the statutory jury directions, stating that preconceptions about sexual offences should be addressed through evidence and discretionary directions.
Justice Secretary Michael Matheson said: “The Scottish Government included these provisions in the bill to deal with the unfortunate fact that some members of a jury will take with them into the jury room preconceived and ill-founded attitudes as to how sexual offences are likely to be committed, and how someone subject to a sexual offence will likely react.
“It is the case that some members of the public continue to think that someone carrying out a sexual offence will almost always require to use physical force, that the person subject to the sexual offence will almost always offer physical resistance, and a report to the police by the victim about the sexual offence will almost always be made immediately.”
He added: “Where people hold these views, it is unfortunate that they can allow such unenlightened views to cloud how they assess the evidence in a case.”
The legislation yesterday passed its first stage at Holyrood.
If the bill is passed by parliament, it will also ensure child sexual offences committed in England and Wales by Scottish residents can be prosecuted in Scotland and reform the system of civil orders to improve protections for communities from sex offenders.