The Scottish Law Commission (SLC) has launched a paper on potential changes to homicide defences, which could stop the accused in a murder case suggesting the death of a woman was excusable because she died after consenting to violent sexual activity.
The “rough sex defence” was outlawed in England and Wales earlier this year and the SLC is looking for views on whether Scotland should do the same.
The paper could also see the defence of provocation removed from Scotland’s justice system.
It has been used by the accused in cases where they claim they had discovered their partner was in a sexual relationship with another person.
In an urgent question raised in Holyrood on Tuesday by Scottish Conservative justice spokesman Jamie Greene, he asked Mr Brown if the government would change the law should the consultation recommend the defence being outlawed.
“This paper potentially opens the door for changes in the most serious of crimes,” he said.
“This is the modern era, which has shone the spotlight on violence against women on coercive behaviour and redefining how a case for the defence is made for those who have suffered from abuse.
“The previous Cabinet secretary said there was only a perception that a defence of rough sex still exists in Scots law. If the paper makes clear it’s the law itself that is deficient, will the government commit to legislative change in this area?”
Mr Brown said he did not want to “pre-empt the final recommendations”, but welcomed “the inclusion of certain aspects for reform, including whether Scots Law needs to be clear in terms of the so-called rough sex defence, whether new defences in respect of those who experience domestic abuse are needed and consideration of the reform of the defence of provocation”.
He said: “There’s an acknowledgement that there needs to be an updating of defences of homicide, there’s no debate about that, and to take into account gender based violence, some of the language and notions … there’s some confusion over the rough sex defence as to whether it is a defence and can be used to reduce the charges made, or subsequent to a guilty finding to inform sentencing. It’s important we have clarity on that.”
Scottish Labour’s Pauline McNeil and new SNP MSP Emma Roddick both pressed Mr Brown on removing both the rough sex defence and that of provocation, saying it had “no place in modern Scotland”.
Ms McNeil added: “Consent to sex can never be a defence to murder or serious sexual assault. There were 60 cases across the UK where this defence was used, and 40 per cent of women under 40 have reported being violently assaulted during sex.”
The rough sex defence was highlighted in the trial of the killer of Grace Millane, a British backpacker, in New Zealand.
The defence lawyer for Jesse Kempson argued that Ms Millane had died accidentally the day before her 22nd birthday in a "sex game gone wrong".
Mr Kempson, who was 26 at the time of the murder, was convicted and sentenced to life imprisonment.
He was later revealed to have raped another British tourist months earlier and had been convicted of crimes against a former partner.
Mr Brown said: “Consent cannot be used to harm someone, the old principle of volante – of volunteering for harm – is no excuse.
"I think the courts have exercised a keen fairness in decision making as to whether they see that as acceptable. I do think the thrust of this report will lead to an updating in an important respect of the legal situation.”
He added: “An accused person cannot claim that a person consented to the harm caused to them, so it’s right to say there’s no rough sex defence, but it’s also true to say an accused person may seek to portray events in such a way to reduce a charge such as homicide.
"That’s why I welcome steps being made to make the law clearer in this regard.
“There is a compelling case for reform.”
New Conservative MSP Russell Findlay asked Mr Brown to move to scrap the controversial not proven verdict, which he said “serves no useful purpose”.
The justice secretary said: “Our manifesto committed to look at this area and it’s linked fundamentally with reform of other areas of justice system. It’s important to take time to get this right, to take it forward in a considered way.”
Lady Paton, chairwoman of the SLC and lead commissioner on the project, said when launching the paper: "The common law crimes of murder and culpable homicide are generally regarded as the most serious of all crimes in Scots law.
"This discussion paper examines a wide range of issues in relation to the mental element in homicide in order to ascertain whether the law in this area is fit for purpose in today's society.
"We are keen to hear from anyone interested in the law of homicide ranging from legal practitioners, criminal law academics, interest groups, victims and their families, through to the wider general public.
"The responses we receive now will help us to shape policy and make any necessary proposals for future reform of the law."
The SLC is seeking responses to the consultation by August 27 and will then publish a report.