Sex offences reform flawed

LAW reform is rarely swift. The Scottish Law Commission was asked in June 2004 by the Scottish Executive, as was, to review the law on sexual offences, publishing a final report in late 2007.

When the Scottish Parliament passed the Sexual Offences (Scotland) Bill in June 2009, the minister for community safety assured Parliament it would "bring much-needed clarity and consistency to the law on sexual offences".

Give us clarity and consistency - but not yet! Well over a year after Parliament approved the legislation, the Act has still not been brought into force. One government publication, in April 2010, contains an almost offhand reference to the Act being "due to commence later this year", but this is as much as we have been told.

Why the wait? When Westminster overhauled the English law of sexual offences in 2003, their Sexual Offences Act - a more complex beast than the Scottish one - was brought into force within six months. Is there something about "clarity and consistency" that the Scottish legal system needs extra time to get to grips with? Perhaps not, but practitioners will miss the dog's dinner that makes up our current law of sexual offences.

Lawyers are often keen to stress the distinctiveness of Scots law, but here we are distinctive only in our disorder. A large part of our law of sexual offences is not really Scottish at all, but derives from UK statutes passed in the late 19th and early 20th century which have long since disappeared from the statute books in England and Wales.

Even the simplest aspects of the current law are fraught with anomalies. Take the age of consent, which everyone knows is 16. Except it isn't. The offence of "unlawful sexual intercourse" can be committed only by a male against a female, so a female who has sexual intercourse with a boy above the age of puberty (which the law deems to be 14 for males) commits no offence.

Elsewhere, the law has simply lagged behind what would be considered appropriate in modern times. Rape itself is a narrowly defined crime, confined to penetration of the vagina by the penis. This means that men cannot, formally, be the victims of rape in Scots law, while many sexual assaults on women that would be regarded as rape in ordinary language must be charged under the vague heading of indecent assault. To make matters worse, in the 1990s, the Scottish courts ruled that a man who unreasonably believed a woman consented to sexual intercourse - no matter how unreasonable his belief - could not be guilty of rape. In this they followed decisions now abandoned south of the Border but Scotland has been stuck with the rule.The new legislation will remedy many such defects in the existing law, but attempts by Parliament to set out a code of sexual behaviour are almost guaranteed to throw up new difficulties. Given that the new Act will make existing textbooks on sexual offences redundant, I began a book on the new legislation and struggled to get to grips with some of the more specialised offences, such as "communicating indecently". This offence criminalises "sexual" communications between two parties when made without the recipient's consent. At first, this seems uncontroversial, but how is consent to be obtained? If someone wishes to send their partner a sexual text, must they first send a separate message asking permission? Quite apart from the unromantic nature of such transactions, this is bad news for those whose mobiles run on a pay-as-you-go basis.

The anomalies in the age of consent have been smoothed out in favour of a general age of 16 but with the consequence of a fiendishly complex legislative regime. The government was not prepared to take teenagers engaging in sexual conduct entirely outwith the law's scope, but nor was it prepared to declare all such behaviour criminal.

In addition, special rules apply where one party is over 16 and one under. Teenagers are provided with one set of sexual behaviours they can engage in when both under 16, a second set they can engage in once one turns 16, with full freedom once the second reaches that age. One wonders whether teachers are really prepared to educate children as to the ages at which they can lawfully (for example) "sexually emit saliva" on to each other. And how much difference will this make in practice? Clarifying the law in a single statute should make matters simpler, and clarity should reduce the risk of injustices occurring. But much public debate around the new legislation referred to Scotland's conviction rate for rape, which is said to be low compared to other countries. Such comparisons are unreliable, because they rely on calculating the number of convictions as a percentage of rapes recorded by the police. Concerted efforts have been made in the UK to ensure allegations of rape made to the police are recorded as such. Against that background, British police record far more rapes than some foreign counterparts. If police officers in other countries only record allegations of rape in the most unequivocal of cases, their conviction rate looks far higher although the number of rapists brought to justice is similar.

That is no defence of the Scottish system but the truth may be that no country has yet cracked this problem. The Sexual Offences (Scotland) Act will take us closer, but only a little.

• James Chalmers is director of postgraduate studies at Edinburgh University School of Law. The New Law of Sexual Offences in Scotland is published under the auspices of the Scottish Universities Law Institute (SULI) and is available from the publishers Thomson Reuters W. Green.