Abusive Behaviour and Sexual Harm (Scotland) Bill

Part of the debate – in the Scottish Parliament on 22nd March 2016.

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Photo of Elaine Murray Elaine Murray Labour

I am honoured to open the stage 3 debate for Scottish Labour on the last bill to be considered in the fourth session of the Scottish Parliament. I would like to thank the clerks, the Scottish Parliament information centre and the witnesses who wrote to or attended committee for their contributions to our deliberations, not just on the Abusive Behaviour and Sexual Harm (Scotland) Bill but over the session as a whole.

I joined the Justice Committee in 2013, but I understand from the committee’s legacy report that since May 2011 the committee has considered 13 Government bills and four members’ bills. That has been a considerable burden of work not just for committee members, but for the clerks and the members of the legislation team who have helped us with our amendments. I also thank the committee’s convener, Christine Grahame, and fellow committee members. It has been an interesting and informative committee to be a member of, and it has often also been quite a lot of fun—although that might seem to be rather unlikely.

Parliament’s committees have attracted some negative comments in the press recently for not holding the Government to account. I do not consider that to be a fair criticism of the Justice Committee, which I believe has continued to scrutinise legislation effectively. The composition of the committee does not give the Government a majority, and the convener—as ministers know—is capable of independent opinion.

I would also like to thank the Cabinet Secretary for Justice and the Minister for Community Safety and Legal Affairs, who is sitting beside him, for being prepared to work with the committee and Opposition members on amendments not just to the bill that is before us but to others that we have considered.

It is pleasant to conclude the session on a consensual note, given that we will all be fighting like cats and dogs for the next six weeks. The Abusive Behaviour and Sexual Harm (Scotland) Bill has been generally welcomed, despite the division of opinion on the provisions on judicial directions.

Scottish Labour would have liked the forms of communications that are covered by the offence of distribution of intimate photographs and films to have been extended, as my colleague Margaret McDougall argued when she moved her amendments on the issue. We had also hoped that it might have been possible to address the matter of the distribution on unsavoury websites of sexual images that are taken without consent in public places, but we can understand why that has not been possible in this bill, and we look forward to further discussion on that.

Scottish Labour members are pleased that amendment 29 in my name, which was agreed to earlier, will mean that anyone who takes a photograph in a public place of a person who has been deliberately placed in an intimate situation without their consent, and distributes it, will not be able to use the fact that the photograph was taken in a public place as a defence. I thank the cabinet secretary for agreeing to have his officials look into that issue. Although it has not been possible to achieve everything that we would both have liked to achieve, we have been able to make progress.

Labour is very supportive of the provisions on judicial directions, because we believe that they may help to achieve justice for rape victims and victims of other sexual offences. When the complainer at a trial has not told, or has delayed telling, another person or the police about the offence, or when evidence is led on the absence of physical resistance, the judge must now advise the jury that there can be good reasons for the complainer’s behaviour and that it does not discredit their evidence. Amendments to remove judicial directions were lodged at stage 2, and we opposed them. I note that similar amendments were lodged but not selected for debate at stage 3.

Juries are made up of members of the public, and research demonstrates that the public often have misconceptions about how victims of rape ought to behave—believing, for example, that physical resistance will always be given or that a victim will always report rape to the police immediately. That is not the case. Victims of sexual attacks may blame themselves and may hold themselves to be partly responsible. Often, women who are affected by unwanted sexual advances or sexual attacks think that they have done something to ask for it: it is quite common. Victims may feel ashamed, they may feel partially responsible and they may feel far too ashamed to come forward straight away. Victims can be far too shocked or scared about what else could happen to them to offer any physical resistance. Who knows what else could happen? They could end up being murdered as well as attacked. They may offer no physical resistance through fear or through being in a state of shock.

We know that, in about 15 per cent of rape cases, a “not proven” verdict is returned, which is the highest percentage for that verdict. Also, it is more difficult for rape cases to come to court due to the difficulty in presenting corroborating evidence. We have had a lot of discussion about abolition of the requirement for corroboration in the session of Parliament that is about to end, but corroboration is still a problem in such cases.

We consider that the provision for judicial direction will help rape victims to achieve justice; for example, it will enable a judge to advise the jury not to be swayed by misconceptions about the reaction of rape victims. [Interruption.] Excuse me.