Rape (Lord Abernethy Ruling)

– in the Scottish Parliament at 5:03 pm on 25th April 2001.

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Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament 5:03 pm, 25th April 2001

The final item of business today is the members' business debate on motion S1M-1789, in the name of Johann Lamont, on the Lord Abernethy ruling on rape. I ask members who are not staying to leave us quietly.

Motion debated,

That the Parliament notes with grave concern the recent ruling by Lord Abernethy that sex without a woman's consent is not rape unless the attacker uses force or the threat of force; believes that women have the right to be protected in law from those who seek to have sex with them without their consent; believes there are serious ramifications in such a ruling for the willingness of rape victims to report the crime and on the attitudes of men who abuse or seek to abuse women; considers that this ruling raises significant issues about the current training for judges dealing with such cases, and given the Scottish Executive's commitment to the zero tolerance of violence to women and its commitment to the support of the victims of crime, urges the Minister for Justice and the Minister for Social Justice, in conjunction with the Executive's equality units, the appropriate committees of the Parliament and in consultation in particular with women's organisations and victim support groups, to review the legislation on sexual assault and rape, to ensure that the law offers real protection and support to anyone who suffers sexual assault or rape.

Photo of Johann Lamont Johann Lamont Labour 5:08 pm, 25th April 2001

I thank you, Presiding Officer, for the opportunity that this members' business debate provides to highlight the grave concern that is felt by many about Lord Abernethy's ruling in a recent rape case in Aberdeen. I place on record my thanks to all the members who signed the motion and to all the individuals and groups who contacted me to highlight their demand for action. I also commend the press and media for in general raising the issues as they have been highlighted to them.

The Lord Abernethy ruling is of immense seriousness. I still remember all too clearly the shock and disbelief that I felt when I first heard in a telephone call from a journalist that a judge in a Scottish court had ruled that sex without a woman's consent is not rape unless the attacker uses force or the threat of force. I still cannot comprehend that we have in place a law that offers so little protection to women. It is evident from the reaction throughout Scotland that the ruling flies in the face of what might be called a commonsense view of what is fair and just.

We know from debates in the Scottish Parliament and elsewhere that there is a great deal of concern, particularly among women's organisations such as the Scottish Rape Crisis Network, about the lack of protection that is offered to women against male violence. There is concern about the under-reporting of rape, the low conviction rate in rape cases and how women are treated in the legal process. There is also concern about women's experiences of being in court where, although they are the victims of crime, they are often subjected to hostile treatment and feel that they have no one to speak up for their interests. We also know of the research that has revealed worrying attitudes among young people about the acceptability of violence against women.

The consequence of Lord Abernethy's ruling must be addressed in that context. What message does the ruling give to women about the point of reporting the crime of rape and what does it do to their confidence in the system? The message given by the ruling to men who abuse or may abuse women is deeply troubling and frightening to contemplate. It is unacceptable that our legal system, rather than protecting women, may put them at greater risk. The ruling appears to collude with the view that women are not to be believed or trusted and that when say no they really mean yes. The Executive has a crucial responsibility to respond to the gravity of the issue. I welcome the fact that the Crown Office has considered the ruling.

There are two options. It may be that Lord Abernethy's ruling was wrong. In that case, it is essential that hard questions are asked about the training of judges, their accountability and the consequences to judges when they get rulings wrong. Equally, it may be that the judge's ruling was correct. In that case—if the judge reflected the law—the law must change. A review of the legislation, such as the one that is being conducted down south, may be the appropriate way forward. If so, I urge the Executive to ensure that those women's organisations that work with the survivors of rape have a central role.

The debate should not just be an opportunity for us to feel sorry for women who are victims of crime; it should be an opportunity to ask hard questions about the nature of rape. It is crucial that the debate is brought out into the open and that the hostility that is too often expressed by those in the legal profession to change in this field is challenged.

The issue of the anonymity of the accused is often highlighted. Any discussion on the anonymity of accused persons should be conducted in the context of the rights of the accused generally. If one group of accused people—those accused of rape—is singled out, the implication is that women are more likely to make malicious or false accusations and that women who report the crime are more likely to be lying than those who report other crimes. Singling out rape in that way is an extension of the attitude that I have highlighted, which seeks to blame women for their situation and maintains that women who report rape should be heard with, at best, scepticism, if not disbelief.

We know that the debate on rape and attitudes on violence against women have moved on, with encouraging advances, especially, for example, in the police. However, the debate has been driven by the strength of women who have survived rape—women who have striven to ensure that society confronts the horror of that crime and the attitude to women that underpins it, and women who have demanded that our legal system changes to prevent other women from having to suffer in the same way. We should salute the courage of those women. I urge the minister and the Executive to pay testimony to that courage by acting swiftly to clarify the current law and to ensure that women are protected, not abandoned, by the legal system.

Photo of Gil Paterson Gil Paterson Scottish National Party 5:13 pm, 25th April 2001

I congratulate Johann Lamont on securing this debate although, like everyone else, I find it rather disturbing that we are having to debate the issue in the first place. I thank the members of the cross-party group on men's violence against women and children who have taken the time to attend tonight's debate and support Johann and her motion.

Rape is an horrendous crime. It is the crime most feared by young women in Scotland today. The statistics about the number of rapes that are reported and the conviction rate are almost beyond belief. In Glasgow, the incidence of rape has risen by 10 per cent over the past two years, but only 2 per cent of rapes that are reported to the police result in the conviction of the attacker. In the UK as a whole, the number of rapes trebled between 1985 and 1999, but the number of men convicted stayed much the same. The figures are shocking enough but, given that 94 per cent of rapes go unreported, the situation is much worse.

It is well documented that, during an attack, a victim's survival instinct takes over. Women may freeze, not resist or even comply with their attacker's wishes in order to prevent beating or even murder.

Lord Abernethy's judgment has ignored those facts. What has happened goes against legal precedent and puts back light years the work carried out by many organisations in this field. Lord Abernethy took the traditional line on Scots law, which is also expressed by many institutional writers. However, in a case heard by Lord Cockburn more than 150 years ago, it was stated that the essence of rape was sexual intercourse obtained without the woman's consent. In a later case, Lord Ardmillan also stated that any method of overpowering the woman's will, even without actual violence, is a use of force in the eyes of the law. Therefore, although there is some confusion surrounding the legal definition of rape, precedent has been set to define force in terms of any method used to obtain sexual intercourse without a woman's consent. The reaction from the legal profession has been similar to the public's disbelief. Professor Black stated that, although what Lord Abernethy said seemed to be perfectly standard and accepted Scots law, whether that ought to be the case was a different matter.

The verdict gives out the wrong message to women and men, suggesting that rape is okay in certain circumstances. It has removed the responsibility from the attacker and shifted it on to the victim. Women already go through intense feelings of self-blame, going over and over the events and wondering whether there was anything that could or should have been done to prevent the attack or lessen its effects. The results are there for us all to see. Rape victims are three times more likely than non-victims to have major depression, four times more likely to contemplate suicide and 13 times more likely to have two or more major alcohol-related problems. In fact, 13 per cent of all victims attempt suicide.

The Abernethy verdict says to women that, if they do not struggle and get physically hurt, they have not been raped. Scottish Women's Aid has stated that it is about time that society gave men the message that, if a woman says no, she means no. An article in The Guardian pointed out that, if a woman physically resists and is severely hurt, she is told that she should have acted more passively, but that, if she does not resist, she is seen as accepting violence. It is a no-win situation. The case in Aberdeen had a high profile, attracting massive and uniform disbelief. The law needs to be clearly defined, to send out a strong message that rape is wholly unacceptable in every circumstance.

On 29 March, Henry McLeish stated that the Executive would

"keep the law under review and make other changes where necessary."—[Official Report, 29 March 2001; Vol 11,

c 1120.]

I appreciate that the Scottish Executive will await the publication of the Crown Office report on the matter and I believe that the case has been referred to the appeal court this afternoon, which is a positive move. However, regardless of the result of that appeal, I implore the Executive to take early action so that what happened in Aberdeen never happens to anyone again.

Photo of Phil Gallie Phil Gallie Conservative 5:18 pm, 25th April 2001

I begin by congratulating Johann Lamont on lodging her motion and on the way in which she has presented the issues.

I recognise the strong feelings that exist across the country on this matter. The ruling has brought a benefit to me in that it has made me look at the rape law as it appears to be at present. Although Lord Abernethy will no doubt come in for a considerable amount of criticism during the debate, perhaps we should all appreciate the fact that, despite the horrendous implications of his ruling, he has done us a service by highlighting the law in the circumstances of that case.

As Gil Paterson said, Professor Black has underlined the fact that he does not necessarily believe that Lord Abernethy was wrong. Quite honestly, what that means is that it is not Lord Abernethy who is at fault, but we, the politicians. This is not a case of reviewing the law; it has to be a case of changing the law. That is fundamental, given the information that lies before us. It cannot be acceptable that someone who does not want to have intercourse is considered not to be a victim of rape. That is not a circumstance that we, as politicians, can allow.

Johann Lamont said that rape is singled out. My understanding is that one voice against another is not sufficient to bring about a conviction in any area of criminal or civil law; some form of evidence is also needed. We have to appreciate that that must always be the case. One person's voice cannot outweigh another's, although there might seem to be strong reason if it does not have the benefit of proof behind it.

The law on this matter in England seems to me to be better than the law in Scotland. I ask the ministers whether, in considering urgent change, they will think about adopting English measures at a fairly early date. Perhaps ministers could sus out some of the facts about rape charges in England to determine whether victims in the courts in England have greater success. If that is the case, it suggests another advantage of changing the law accordingly.

What I have found in examining the current rape law in Scotland, and the interpretation that many people have put on it, shocks me, as I think it shocks every member in the chamber. We should look for change, not just review.

Photo of Nora Radcliffe Nora Radcliffe Liberal Democrat 5:21 pm, 25th April 2001

I commend Johann Lamont on bringing this matter to the chamber. Lord Abernethy's judgment has caused concern throughout Scotland, so it is right and proper that the issue should be aired in Scotland's Parliament.

It was not insignificant that the Lord Advocate called for a report on the case immediately; that indicated the seriousness of the implications of how this point of law has been interpreted. I was heartened that the Lord Advocate moved as quickly as he did.

The element of the judgment that has come under the spotlight is whether rape is only rape when violence or threat of violence can be demonstrated. A lay person would expect that, when a man forced himself on a women, rape had occurred. The very language reinforces that expectation—there is no requirement for cracked ribs, black eyes or a knife held to the throat. Would not it be reasonable for a woman to fear that violence might be offered, even if there was no overtly violent action? In any interpretation of a course of events, there should be some understanding that one human response to terror is to freeze.

I found the view disturbing that violence or the threat of violence has to be demonstrated before it can be said that the crime of rape has been committed, but the Scottish Parliament information centre research note on the legal definition of rape has raised further concerns about how refusal of consent is defined. The law does not start from the assumption that a woman has not consented to intercourse unless she does so explicitly. As currently interpreted, the law in Scotland seems to require that a woman must have made plain her refusal of consent. The note states that

"the requirement that the intercourse should have been against the victim's will limits the ambit of consent to the express or implied refusal of it by the female."

The balance there lies in entirely the wrong direction. Both that point of law and the point about violence need urgent redefinition and clarification if the law is to protect women adequately against a serious, reprehensible and indefensible crime.

Women need to have confidence that the law, which should protect them, is effective. Otherwise, serious crimes will go unreported and the perpetrators will not only not be brought to justice, but be free to prey on further victims.

This debate and the pressure of public opinion are helping to ensure that this serious cause for concern is dealt with—and the sooner, the better.

Photo of Pauline McNeill Pauline McNeill Labour 5:24 pm, 25th April 2001

Johann Lamont has, as ever, brought to the chamber a live and important issue, on which the Parliament can usefully work.

Rape is one of the four most serious crimes in Scots law, indictable only in the High Court. Historically, it has been controversial; over the centuries, there have been many debates and disputes about its definition in Scots law. In the 19th century, courts were more concerned about the risk of impregnation and the resulting taint on the husband's reputation than with the female victim. Even in the 20th century, it was not possible to convict a man of rape if he forced sexual intercourse on a woman against her will until, not so long ago, judges began to change their minds and to rule that rape is rape both inside and outside marriage.

We must question whether our common-law system, which we value, has kept pace with social progress or human rights. Perhaps as legislators we must consider whether it is more important to set the law straight than simply to uphold the system.

As Phil Gallie suggested, the nature of the crime is difficult because it is seldom witnessed—although sometimes it is—and a court has to judge the mental attitude of the accused and the victims. However, as other cases have shown, what matters in rape is that the woman remains unwilling throughout—that should form the basis of any definition of the crime.

Rape is the only crime in Scots law where the accused can claim that he honestly felt that he had consent, even though he did not. In all other crimes, the test of reasonableness has to be applied. My concern is that it does not have to be applied to the crime of rape.

Of course, every case turns on its own merits and we must consider the variety of horrific circumstances that rape victims have had to endure. Indeed, one of the horrifying aspects of studying rape is the horror of the details in many cases. How does the law help a woman who is so frightened by her attacker that she submits to protect her life? We must examine the law to ensure that justice is served to all women in all circumstances.

I realise that we do not have a transcript of the Abernethy case, but what I do not understand about the verdict is that there have been cases—such as the Barbour case—in which judges have stated that what matters is that in her mind the woman remained unwilling throughout. The law is not at all clear and I do not understand why there was no reference to that case.

Scots law must be examined against the English legal position. In Scots law, we must establish that the act was committed against the woman's will, whereas in England consent must be established. It is worth considering that point because, as other members have pointed out, it is much easier to establish whether consent was given than it is to meet the current requirements of Scots law.

In summary, the law must be clarified. We might need to be brave enough to change the law, even though that might be against the advice of the legal establishment.

Photo of George Reid George Reid Scottish National Party

As this is an important issue and more members have asked to speak than can be fitted into the available time, I am minded to accept a motion without notice to extend the debate to

6 pm.

Motion moved,

That the debate be extended to 6 pm.— [Johann Lamont.]

Motion agreed to.

Photo of Dr Winnie Ewing Dr Winnie Ewing Scottish National Party 5:28 pm, 25th April 2001

In my previous life as a court lawyer in the criminal sector in Glasgow, I have acted for many rape victims and I must say that very few of the people who came to me were prepared to go into court. Indeed, almost all cases do not go near a court. Gil Paterson's statistic that 2 per cent of reported rape cases result in successful convictions speaks for itself. How many women will face up to such a likely lack of success in court when it is coupled with the enormous humiliation of the rather special one-to-one criminal procedure that is involved in rape cases?

As members have pointed out, recent cases in English law have made it clear that it is not necessary to prove that force was used. I have always enjoyed the odd chance to murmur a Scottish judge—which is an offence in itself; however, I am happy to murmur Lord Abernethy in this particular matter. On the evidence of many cases, the balance of the law was against him, so he must have had an off-day or a strange day when he came out with this judgment. Apart from the judgment, there was a factor in that case that we must remember was significant in itself: the door was locked. Mind you, it should not have mattered whether the door was locked. Other factors, regarding consent, are more important. There is no doubt that Lord Abernethy has made a fool of himself.

We must review the current definition of rape. This is a good time to do so, as we are reconsidering many aspects of the law in the light of the European convention on human rights. It is wonderful that the Parliament at last has the chance to review Scots law. I was at the House of Commons for eight years, and there was never time to get Scots law on the agenda. Consequently, it fell out of date in many ways. The Scottish Parliament has no excuse. We can bring our law up to date, and I hope that we will do so.

A man might rape a woman who did not speak the same language or who never uttered a sound. Clearly, therefore, a conversation about force or whether the woman consented is not essential. When we redefine the definition of rape, we must also consider the strange position of those who are insensible. According to the SPICe note, the law currently states

"that a female, who had not made plain her refusal of consent to intercourse with the accused prior to becoming insensible, cannot be raped by him if he later takes sexual advantage of her whilst she is insensible".

Such absurdities must be eradicated.

If we review the definition of rape, as we must, should we not also review the nature of the criminal procedure? We are considering the issue of cross-examination, but we should also depart from the normal procedure regarding the revelation of previous convictions in rape cases. Justice must be seen to be done, and previous convictions are usually ruled out; however, rape cases should qualify as exceptions and any previous convictions against the accused should be made known.

Photo of George Reid George Reid Scottish National Party

I inform Dr Ewing that the offence of murmuring a judge, as laid down in the judges act of 1541, was repealed in 1973. The offence of scandalising the judiciary remains; however, there have been no prosecutions since 1931.

Photo of Elaine Thomson Elaine Thomson Labour 5:32 pm, 25th April 2001

I thank Johann Lamont for securing this debate. The women in Aberdeen, as throughout Scotland, are outraged by Lord Abernethy's ruling. Aberdeen University Students Association has condemned the ruling and is requesting a change in the law. The students think, as many of us do, that sex without consent constitutes rape. This recent ruling has stood that notion on its head and has suggested that, unless someone can display suitable evidence of physical violence, that is not the case. That sets back the whole agenda on rape and sexual assault.

The areas of rape and sexual assault are already bedevilled by many myths and stereotypes, such as the suggestions that no does not really mean no and that rape is largely about wild-eyed strangers leaping on innocent women. The reality is that most women are raped by a man whom they know. It cannot be said clearly enough that rape is about power, control and violence; however, it seems that some of our judiciary still do not understand that. Johann Lamont's motion rightly calls for better training and information for judges, and I support that. It would also help if there were more women among the judiciary.

We await the decision of the Lord Advocate, as to whether he will call for further investigation of the matter. I hope that he will do so, as legislative change is very much required. Certainly, if the definition of rape is not clear in Scots law, it must be reviewed. I support Johann Lamont's call for consultation of women's groups as a vital part of any review of the law. In the near future, I shall meet women's groups in Aberdeen, including representatives of the Aberdeen rape crisis centre who have been supporting the young woman who is involved.

However, I draw the minister's attention to the limited nature of the services that organisations such as the Aberdeen rape crisis centre can offer. It is currently surviving on donations and a tiny grant from Aberdeen City Council. While there has been welcome extra money for the support of Women's Aid organisations, I suggest that the rape crisis centres also need support.

Rape and sexual assault must be clearly defined under the law so women have confidence in Scottish justice and are encouraged to report the crimes. However, it is not enough simply to encourage women to come forward. The conviction rate in rape cases is low and is getting lower. I suggest that that fact needs to be part of any review.

Photo of Tommy Sheridan Tommy Sheridan SSP 5:35 pm, 25th April 2001

Following on from that last point and bearing in mind what Winnie Ewing said, I point out that it is clear that a major worry is that the willingness of women in Scotland to come forward and report the crime of rape has been undermined even more than it already was. I applaud Johann Lamont for securing this debate. I suggest that if we do not get movement as quickly as we would like, she should consider introducing a member's bill to secure the necessary legislative change.

On Friday evening, I had the pleasure of being involved in a play that was written by Frances Corr, a female playwright. The play was called "Glasgow's Fallen Women" and tried to depict the hidden history of women's struggle throughout Scotland and particularly in Glasgow. In the course of the play, it became clear to those who attended or participated that popular history tells us little of the way in which violence has been used against women through the ages, mainly because men made the laws. In the course of the discussion that took place after the performance—one takes place after each performance—a member of the audience referred to the use during the course of the play of the term "the rule of thumb". It was explained that the term was developed in Scotland on the basis of the legal right for a man to beat his wife as long as the stick was not thicker than the breadth of his thumb.

We have been landed with a legal system and a set of laws whose initial construction was sexist and anti-women. We need to have a complete overhaul of the legal system if it is to be brought into the reality of the 21st century. We have to consider carefully what the ruling of Lord Abernethy does.

In the course of the discussion on Friday evening, I learned the shocking result of the most recent survey of the Zero Tolerance Trust's "Respect" campaign, which aims to examine young people's attitudes. The survey found that one in two boys and, even worse, one in three young women believe that it is all right to hit a woman in certain circumstances. Given that that is the attitude that already exists, the ruling of Lord Abernethy sends out a deplorable message. We have to send a message that rape is violence in and of itself.

We have to examine the implications of the idea that there has to be force or the threat of force in order for the act to be considered to be rape. If a man threatens to harm the child of a woman rather than the woman, should that not be perceived to be rape? If a man uses a highly toxic drug and the woman is not threatened with violence, as in date-rape cases, should that not be perceived to be rape? Sexual intercourse with a non-consenting woman must be seen to be an abuse of power and an act of violence in and of itself. I hope that the Executive will take swift action to right this wrong.

Photo of Mike Rumbles Mike Rumbles Liberal Democrat 5:39 pm, 25th April 2001

At one level, I have been surprised by the controversy surrounding Lord Abernethy's judgment of 22 March that, for a charge of rape to be proved, there has to be evidence of force or the threat of force being used. That has long been the law in Scotland and I understand that, in the case in question, there never was a dispute about the question of force or the threat of force being used. The situation was that it was one person's word against another's. In law, it seems that Lord Abernethy was quite correct in dismissing the case.

My criticism is not of Lord Abernethy but of the law as it stands. The question before us is clear: should the law of Scotland be changed to make it clear that no means no, as is the case south of the border? I believe that that should be the case. However, the crime of rape has, in Scots law, always been associated with violence. I believe that, after murder, the crime of rape is one of the most evil, vicious and, above all, most violent crimes that can be perpetrated.

I have practical concerns about the whole issue of rape. Although I believe that we should remove the requirement for proof of violence or of the threat of violence, and that no should mean no, I am worried that rape may in the future no longer be considered to be the violent crime that it is. Will the crime end up being downgraded in the eyes of the victim, and will there be less severe sentences for those criminals who are convicted of rape? I hope not.

I also have concerns about the related issue of the confidentiality of the accuser and the accused. I fully support the situation under which the accuser has complete confidentiality. That helps individuals to come forward. However, I have been concerned about the balance of the rights of the accuser and the accused for some time, and I was not happy to hear what Winnie Ewing suggested earlier. In case after case, publicity surrounding accusations of this heinous crime has focused on the innocent accused—not forgetting that a person is innocent until proven guilty—and has continued after the verdict.

Photo of Mike Rumbles Mike Rumbles Liberal Democrat

No, I will not. No one could doubt that publicity should be given to those who are convicted of this awful crime, but it is wrong that an innocent person's life can be ruined through such publicity. If we are to change the law surrounding rape, and I hope that we are, we should act to ensure that no means exactly what it says—no—and we should also consider giving anonymity to both the accuser and the accused in cases of rape. If the accused is found guilty, anonymity should of course be removed, but I believe that, as far as anonymity is concerned, we should be even-handed at the pre-verdict stage.

Photo of George Reid George Reid Scottish National Party

I call Trish Godman, to be followed by Roseanna Cunningham. I ask members to restrict their speeches to under three minutes from now on, so that everybody can contribute.

Photo of Trish Godman Trish Godman Labour 5:42 pm, 25th April 2001

As others have done, I start by offering my thanks to Johann Lamont for her motion and for her excellent speech. If there are legal difficulties surrounding the definition of rape, then let us do something about it. That is why we are here. As Tommy Sheridan has said, if the matter can be dealt with through a member's bill, I call on the Executive to ensure that that bill is given an unhindered passage through the Parliament.

On the issue of rape and other forms of sexual assault, victims should have confidence in the medical profession, in the police force and in the legal profession to know that their legitimate complaints will be treated as the very serious matters that they are.

Will the minister confirm that in a case in which a woman complainer suffers from learning difficulties, she is protected by being defined as a vulnerable witness and, as such, can avoid the humiliation of being cross-examined in an open court? Can that instead be done by means of taping or closed-circuit television?

I would like the definition of vulnerable witnesses to be extended to victims—or to complainers, if we must use that Scots legal term—in all rape cases. The matter was raised some time ago at Westminster. However, the predominantly male and Conservative—and conservative, with a small c—MPs, and, I have to say, members of every political colour, did not think that such an extension of definition was the way forward. We have the power to change that, and I believe that, at the very least, we should consider it.

No judge, lawyer or whoever should be able to cast doubt on a complaint of sexual violence because of the absence of physical violence. A few years ago, a young English girl was raped and murdered in the presence of her friends, who slept through the whole sexual assault and murder. Was her invader guilty only of murder because she did not make a sound through that horrific assault? I think not. The perpetrator was and is guilty of both rape and murder. One wonders what Lord Abernethy would say if he were to try a similar case.

Photo of Roseanna Cunningham Roseanna Cunningham Scottish National Party 5:44 pm, 25th April 2001

First, I apologise to you, Presiding Officer, and to members, for my mobile phone going off in the chamber earlier.

As has been discussed, rape is a crime at common law. That means that, over the years, its definition changes through court decisions and judicial interpretation. I am not sure that Mike Rumbles is quite right in his assertions about an accepted, agreed definition. Even in common law, no matter how old the crime is, things change.

The question that is raised by Lord Abernethy's astonishing judgment is what sex without the consent of the woman becomes. That is probably what has astonished most people and most, if not all, women would like the question to be answered. If it is not rape, what is it? It is a big question, which needs to be addressed.

There is another crime in Scots law that deals with some of the points that members raised: clandestine injury, which is sex that is perpetrated on a woman when she is asleep, unconscious or in some way incapable of giving consent. That is a common law crime, for which there have been prosecutions. The problem is that it does not cover the situation that we are talking about, in which no force was used, but no consent was given and the woman was not asleep. I think that most women will have assumed that no consent means no, and that men should not proceed with what they are trying to do. That is the aspect of the matter that astonished everybody. If Lord Abernethy is right, lack of consent is neither here nor there, and legislation might be necessary. It might be that lack of consent without force means indecent assault—we do not know.

We need to accept that moving rape out of the common law and into statute brings its own difficulties of definition and interpretation. Proof will still be an issue and there is the question of how one shows a lack of consent—always the problem with rape. Let us hope that we will all be happy with the ruling of the High Court judges, whenever that is made, and that it will give us a definition of rape that fits our more modern interpretation.

Photo of Lewis Macdonald Lewis Macdonald Labour 5:47 pm, 25th April 2001

I am grateful for the opportunity to take part in this debate from the back benches. I do so simply to represent the views of the victim in the case. I thank Johann Lamont for an early opportunity to put those views across.

The young woman in question is a student in my constituency. She came to see me to tell me what she felt about Lord Abernethy's judgment and the circumstances of the case. Understandably, she did not dwell on the trauma of the event itself, but instead talked about the impact on her life: the 18 months waiting for the case to go to trial; the ordeal of the court case; and the bitter twist of the charge of rape being dropped, apparently only because she had borne her terror in silence. She is a mature and compassionate woman, who did not seek out her MSP to rail against the injustice to herself, no matter how she may have felt. Instead, she wanted to know what could be done to ensure that the same situation does not arise again. She wanted to address whether there is a gap in the law and, if there is no gap and the judgment was a misinterpretation, to ensure that it does not worsen the already low conviction rate for rape.

My constituent highlighted two matters. She could not understand how the act of which she was a victim could be considered anything other than a rape, an offence and a crime. Further, because the act was considered to be none of those things, she faced the anomaly of being unable to respond to the debate that arose from the case without losing the anonymity that she rightly wanted to protect and maintain.

I have written to ministerial colleagues on both those matters on my constituent's behalf, and I look forward to their replies. I know that she will look beyond her own experience and agree with all the members who have said that what is important is the wider implications of the case. I speak for her directly in saying that if there is a gap in the law, it must be closed without delay.

Photo of Donald Gorrie Donald Gorrie Liberal Democrat 5:49 pm, 25th April 2001

I encourage Johann Lamont to push for a private member's bill on the issue. Many rapes are committed by violent and brutal men and the issue is clear cut—force is used, which is totally unacceptable.

Many rapes arise from self-delusion on the part of the male, who thinks that he is receiving some sort of consent. The woman might agree to come home for a drink after a night out, or to a cuddle on the sofa or whatever—there is a range of possibilities. We are dealing with a delicate human issue in which it is important to have clarity, and doubt is the main problem for many people. Any proposed bill must specify either that the woman must say yes, or it is not on or, it must at the very least specify that, if she says no, then it is not on. We cannot have any more of reading things into body language, because we can all deceive ourselves. When a man's blood is up, his judgment goes out of the window. We must have absolute clarity in the law—that is the most important goal for us to achieve.

We should send out a message, particularly to the young people who were mentioned by various members and who were involved in surveys and seem to accept that violence is okay. That view is not acceptable at all. My message is this: let us get rid of the uncertainty.

People of my age used to enjoy two entertainers called Flanders and Swann, who wrote a song about a young lady in the south seas. The punch line of that song was that, unfortunately, the word for no in her language was so long that by the time she had said it, the worst had happened. We are not like that. We have nice, simple words: yes and no. We should draft a bill in simple terms in order to make real improvements.

Photo of Elaine Smith Elaine Smith Labour 5:51 pm, 25th April 2001

I also congratulate Johann Lamont on securing the debate. Having listened to some of the speeches, I must make it clear at the beginning of my speech that rape is not about sex—it is an act of violence.

As other members said, the decision that was taken by Lord Abernethy could have serious repercussions for many women in Scotland. As Elaine Thomson suggested, their willingness to participate in the legal system could be further undermined if women know that the outcome could be prejudiced by the perverse conclusions of a male-oriented justice system.

We know that the number of rapes that are reported is only the tip of the iceberg and that, of those that are reported, only 16 per cent get to court and 9 per cent result in a conviction. From those figures, we must conclude that Scotland's legal system is failing to protect women and that it is failing to deliver justice.

Having gone through the trauma not only of rape, but of being examined medically and being questioned by the police, a woman whose case eventually goes to court expects justice. Instead, she might find that she, not the rapist, seems to be the person who is on trial—it is no wonder that so few rapes are reported.

If a rape case goes to court, the woman is the main witness for the prosecution and, as a witness, she has no right to legal representation or information about the case, and she has no control over the proceedings. She will have to describe her experience in detail, face to face with the accused and in a public and intimidating environment. She may also be subjected to aggressive and degrading questioning.

We know that lawyers and judges must operate within the broad framework of the law, but an informed and sensitive interpretation is essential. The experience of women who give evidence in rape trials shows that such an approach is the exception rather than the rule, which raises issues about training, accountability and representation for members of the legal profession, including judges, as Johann Lamont mentioned.

The figures on women's representation in the legal profession make disturbing reading. There are 27 male and two female permanent judges, seven male, but no female, temporary judges, 103 male and 17 female full-time sheriffs, 316 male and 81 female advocates and 80 male and 6 female Queen's counsels. The Scottish Executive's justice department must take a more proactive approach in order to tackle the problem of under-representation of women at all levels of the legal profession. The current situation is nothing less than absolutely scandalous.

Training for criminal justice agencies is promised in the Scottish Executive's strategy for victims. I support the necessity of training for all criminal justice agencies, including judges. Perhaps when the minister sums up the debate, he will let members know whether that training scheme has started and, if not, when it will start.

Responsibility for ensuring that rape is recognised as a totally unacceptable crime is located at every level of society. However, we must remember that the specific responsibility for recognising and dealing with the crime of rape rests with those who are responsible for, and who can influence, the personnel, the processes, the procedures and the framework of the criminal justice system—politicians.

Male violence against women is unacceptable—saying "No" always means no. Our legal system must recognise that simple fact, or injustice will continue to prevail.

Photo of Iain Gray Iain Gray Labour 5:54 pm, 25th April 2001

The debate has highlighted well the varied and often sensitive issues that are associated with sexual crimes, and rape in particular. The standard of the debate shows once again Parliament's commitment to tackling those issues.

I want to make the Executive's commitment clear. We unequivocally condemn all types of sexual assault and violence against women. We are committed to tackling those crimes and to supporting victims of rape and sexual assault through every stage of the criminal justice process, and beyond.

The motion was prompted by the outcome of a recent rape trial. Today, Parliament's concerns about the implications of the judge's ruling in that case have been eloquently expressed. Although it has been said before, I must stress that it is not for the Executive to comment on individual court cases. Judicial independence is the cornerstone of the Scottish legal system and Parliament would not want it any other way. However, we are not blind to, nor are we ignoring, the current concerns about the treatment of rape in law.

I agree that victims of rape and sexual assault need to be properly protected by the law and that all women must have confidence that they will be protected. A change in the law on rape might seem to be an attractive option. However, Johann Lamont was correct when she said that we simply do not know whether the law needs to be changed. First, we need to clarify how the law stands at present. Roseanna Cunningham was right to explain that to act before we are clear about the present position of the law would be to risk making mistakes that cannot easily be rectified later. Indeed the approach in England, to which Mr Gallie and others referred, is itself under review because it is not without problems. I will return to that.

However, that is not to say that we can do nothing in the meantime. The victims of the crime must be protected. That is why we will bring forward a bill that will contain proposals to change aspects of the law of evidence for rape and other sexual offences so that the complainer will be further protected. We are considering how to improve the protection from sexual abuse of people who are made vulnerable by mental disorder. We are looking at new arrangements for the sentencing and management of serious violent and sexual offenders.

Violence against women in any context cannot be tolerated. The national strategy to address domestic abuse in Scotland, which was launched last November, recognises that domestic abuse is linked to other forms of male violence, such as rape and sexual abuse. That work will be taken forward by a working group on protection issues, which will be established by the national group to address domestic abuse.

Mention was made in the debate of the Scottish strategy for victims, which was launched in January 2001. The strategy is designed to ensure that when people are unfortunate enough to become victims of crime, they have a central place in the criminal justice system. It is a clear indication that we are committed to ensuring that victims get proper treatment, particularly where the victim has suffered a sexual assault.

Johann Lamont was right to mention the role of the police. The police are usually the first point of contact in the criminal justice system for victims of rape and sexual assault. The police must treat victims properly from that earliest encounter. The importance of tact and sensitivity in handling all victims of sex offences is now recognised by the police and is covered by extensive guidance. All probationers are given training in dealing with victims of sex offence cases, which is followed up by in-depth training at all levels.

I want to return to what has been identified as the key question of whether the law on rape needs to be changed. When Gil Paterson met Jim Wallace yesterday, Gil Paterson urged us not to lose sight of that matter and Johann Lamont's motion also makes it clear that we must move decisively. I am therefore pleased to be able to tell the Parliament that this afternoon I spoke with the Lord Advocate, who said that he had concluded his consideration of the transcript of the trial and of the trial advocate depute's report. The Lord Advocate told me that he intends to make a reference to the High Court to seek clarification of the law on rape.

At this juncture, the Lord Advocate is unable to provide details on the full terms of the reference. He has instructed that that reference should now be drafted. Some further work will be done on the precise form of the questions for the determination of the court. I should make it plain that there is no time limit on making a reference of this kind, but the Lord Advocate has instructed that it be lodged with the court next month. We cannot say how long the court will take to reach an opinion; it will properly take the time that is required for serious consideration.

This evening, we are signalling clearly the urgency with which the Executive views the matter. This is the first necessary step in addressing the issue that was raised by Lord Abernethy's ruling. It might not be the last necessary step, but it has been taken.

Meeting closed at 18:0