Rape: new ways for a woman to say no

For the first time in Scots law, the concept of consent in rape cases will be clearly defined in statute. It will also be spelled out to judges and juries that a woman cannot be held responsible for an attack on her if she was so drunk that she was incapable of agreeing to sex.

The Scottish Law Commission, which published the recommendations, said it was time to "clear up the confusion" surrounding consent, a fundamental issue in rape trials which is currently left up to jury members to define. Professor Gerry Maher, QC, who led the review, said: "The law has to make absolutely clear that, just because someone is very drunk, they are not consenting to having sex."

Campaigners hope the move will result in fewer cases in which a rapist is acquitted because the jury believes the victim was somehow to blame, either because she was drunk or had agreed to go home with him.

But with no proposed relaxation of the need for corroboration, they doubt whether these reforms will significantly drive up the rape conviction rate, which, at 4 per cent, is one of the lowest in the world.

Earlier this month, a survey of more than 700 potential rape-trial jurors found 40 per cent felt women contributed to an attack if they put themselves in such "risky" situations.

Prof Maher said the new definition of consent, which will require there to be "free agreement" for sex – and a list of real-life scenarios in which consent cannot have been given – would "send a warning" to men who think it is OK to "get a woman drunk" with the aim of having sex.

Under the proposals, seven different "situations" in which a woman cannot be judged to have given her consent to sexual activity will be laid down in law. They cover scenarios where a woman is intoxicated through drink or drugs, or has been threatened.

Prof Maher said: "To the extent there are social attitudes, for example women who are drunk are asking for sex or are in some way to blame, then we are sending out a signal. We hope that, by stating clearly what consent is and highlighting in law scenarios where consent is not given, juries will not bring their own attitudes towards consenting sexual behaviour.

"If we change social attitudes, clearly, that will have an impact on the conviction rate."

He said the changes were likely to lead to more successful prosecutions. "It's more likely to do that than if you leave consent undefined," he said.

"Take the scenario where women are so drunk, so intoxicated, that they reach the stage where they cannot consent. That will be spelled out, which will send a signal to people: if you are dealing with people in such a situation, you're on a warning that that person cannot consent to any sexual activity that takes place. The very fact of that will have, we think, an affect on social attitudes." He said spelling out in law real-life scenarios where consent would not apply was a "radical" move that he believed would encourage more victims to trust the legal system and come forward.

"I think it will," he said. "I think there is confusion caused by the fact that nobody quite knows what the law is. People can wonder 'was there consent to sexual activity?' One of the problems is that the complainer doesn't realise they have been raped. They think something wrong has happened, but they feel they have no recourse to legal remedy."

New crimes of sexual assault and sexual coercion, each carrying maximum life sentences, would also be created under the proposals. The latter could used against pimps and stalkers who terrorise women by sending them explicit sexual e-mails, letters and text messages.

A 200-page report published by the commission also proposes to sweep away an anomaly in Scots law by including attacks on men in the definition of rape.

But the commission is not proposing any relaxation in the rules surrounding corroboration in sexual offence cases.

The measures are expected to form the basis of a new sexual offence bill to be launched in the Scottish Parliament next year.

The Scottish Government said it would carry out a consultation on the proposals before publishing the bill next spring, but Kenny MacAskill, the justice secretary, agreed the current law on rape was "unsatisfactory, unclear and too narrowly drawn".

The commission looked at sexual law in other countries and had been impressed by the reforms carried out in Victoria, Australia, where a similar "free agreement" definition of consent had been adopted.

"It appears to have worked really well," Prof Maher said.

The report was welcomed by Rape Crisis Scotland, although the group said only a massive change in social attitudes would drive up the conviction rate.

Sandy Brindley, the body's national co-ordinator, said: "With only 3.9 per cent of rapes reported to the police in Scotland leading to a conviction, it is clear urgent action is required. It is simply not credible to argue that 96 per cent of women reporting rape are lying, therefore there are grave concerns that currently men in Scotland are getting away with rape.

"In this context, the Scottish Law Commission's proposals to clarify the law on rape, and on consent, are welcome. Rape is an issue which is surrounded by many stereotypes, misconceptions and often outright prejudice – only two weeks ago, Rape Crisis Scotland released the findings of a survey which found that 40 per cent of people blamed women for rape if we put ourselves in 'risky' situations such as going home with a man.

"It is therefore crucial that our law on rape is as clear as possible, to give a very clear message to society about what behaviour constitutes rape."

But she went on: "Law reform – while important – on its own, won't be enough to improve our dismal conviction rate for rape. We also need to make serious and sustained attempts to fundamentally change society's attitudes to rape, and to women's sexuality."

Mr MacAskill thanked the Scottish Law Commission for its "detailed and considered" report, and said: "The Scottish Government shares society's revulsion at incidents of rape.

"We are clear that this is a despicable crime and that those found guilty must be punished, and society protected.

"There has been considerable public, professional and academic concern that the current law on rape is unsatisfactory, unclear and too narrowly drawn. Equally, many other aspects of Scots law on sexual offences need modernising and require reform.

"Scotland needs a robust, modern framework of laws in this area, fit for the 21st century – a clear legal framework that ensures rapists and sex offenders are brought to justice and that victims have confidence in the justice system."

Court ruling that merely created more confusion

THE definition of consent in rape cases became mired in confusion following a high-profile case six years ago.

Ed Watt, a law student in Aberdeen, was acquitted of repeatedly raping a fellow undergraduate in her bedroom after the trial judge ruled that proof of the crime required evidence of physical force or threats.

The trial heard that he maintained the sex was consensual.

"She did not tell me to stop at any stage and at each stage I was asking if she minded going further," he told police.

But the complainer gave a radically different account to the jury.

She said: "I was saying, 'No, stop, I don't want this', but he just carried on anyway."

The ruling led to an outcry and the Lord Advocate referred the case to a panel of judges, who decided physical force was no longer required for rape to take place.

Rape now simply meant having sex with a woman without her consent.

But this raised a new question that has, until now, been left unanswered: How do you define consent?

Victims must be assured real protection

The long-awaited publication today of the Scottish Law Commission's Report on Rape and Other Sexual Offences provides a unique opportunity for an overhaul of some of the most serious offences recognised by the criminal law.

The question which will dominate the thoughts of vociferous critics of the current law is: "Have the Scottish Law Commission got it right?"

Do their proposals go far enough in the compromise between protecting citizens from sexual assault and protecting the rights of those accused of such assaults?

A number of their recommendations ought to be uncontroversial, for example the Commission's desire to adopt a gender-neutral principle where both men and women can be capable of offending and of being offended against.

What will almost certainly prove more controversial in the courts is the principle of sexual autonomy. This is where the deeply contentious issues around consent to sexual intercourse become the acid test of these reforms.

Consent to sex is proposed as "free agreement" and the draft legislation attached to the report sets out circumstances to illustrate where it will not be possible to argue that consent was freely given.

Despite the boldness of this proposal, it is not clear that it will be sufficient to deal with the following common situation.

A man accused of rape provides a statement to the police that "she consented". The woman denies this. There are no witnesses and little to corroborate either version. Although under the proposed regime the accused will have to explain why he reasonably believed the woman consented, it appears it may be sufficient for him to say, "I asked her, and she consented".

In situations where it is the complainer's word against that of the accused, her sense of duress or fear of retaliation inducing consent may not be evident. Of course, Crown counsel may be able to explore these issues with the complainer, and the jury will decide whom they believe. But the jury may never hear the accused's explanation in person and thus assess his credibility.

A recent research study for the Scottish Executive conducted by Professors Burman and Jamieson confirmed that it is comparatively rare for men to opt to go into the witness box. Instead, their police statement is presented to the jury, but there is then no opportunity for the Crown to cross-examine him on it, and no opportunity for the jury to observe his demeanour. In such circumstances one fears that a woman's sexual history could largely remain the focus of the rape trial. The proposals in this report are too important to let that happen.

Fiona Raitt, Professor of Law, University of Dundee

'DRUNKEN CONSENT IS STILL CONSENT'

IT WAS a ruling that sent shock waves across the country.

Justice Roderick Evans instructed a jury to return a not guilty verdict after an alleged victim admitted under cross-examination that she was too drunk to remember whether or not she had agreed to sex. The judge declared at the end of the case that "drunken consent is still consent".

Professor Fiona Raitt, an expert in sexual offence law at Dundee University, said that, under the proposed reforms, a jury in Scotland should be allowed to consider the evidence.

"There would presumably be some evidence that the complainer was so drunk that she was incapable of giving her consent. The defence will undoubtedly dispute that, but the jury should be allowed to weigh up the evidence.

"But the problem of proving she was too drunk will remain."

THE 'RAPE SCENARIO'

1 The person has taken or been given alcohol or other substances and as a result lacks the capacity to consent, unless consent has been given earlier.

2 The person is unconscious or asleep and has not earlier given consent to sexual activity.

3 The person agrees or submits to sex because he or she is subject to violence or the threat of violence.

4 The person agrees or submits to sex because he or she is unlawfully detained by the accused.

5 The person agrees or submits to sex because he or she has been deceived by the accused "about the nature or purpose of the activity".

6 The person agrees to the act because the accused impersonates someone who is known to the alleged victim.

7 The only expression of agreement to sex is made by someone other than the alleged victim.

LAW CHANGES

Consent will be defined in law as "free agreement".

Non-consent scenarios, such as a woman being so drunk she is incapable of agreeing to sex, will be stated in law.

The definition of rape will become gender-neutral, so male rape will be recognised as such.

An accused's insistence that he believed a woman consented will have to be "reasonably held".

New offences of sexual assault, sexual coercion and rape against children and people with a mental disorder will be created.