Opinion by Michaela Guthrie - Sexual Offences (Scotland) Act 2009

In this opinion piece third year law student, Michaela Guthrie welcomes the new Sexual Offences (Scotland) Act 2009 as being a promising shift in the prosecution of rape.

On the 30th June, Adrian Ruddock became the first person to be convicted of rape under Section 1 of the Sexual Offences (Scotland) Act 2009. After carrying out an attack on a young woman that was described in court by Lord Bracadale as “a prolonged, violent and degrading ordeal”. Ruddock was sentenced to 8 years in prison with a 3 year extended sentence. His conviction under the new legislation was described by the National Co-ordinator of Rape Crisis Scotland, Sandy Brindley, as “encouraging”.

The Sexual Offences (Scotland) Act 2009 has revolutionised the law relating to rape and other sexual offences in a number of ways. First, it introduces a broader, statutory definition of rape; second, it defines consent and does away with the Morgan defence and finally, it addresses the issue of alcohol and drug use by victims.

In the Scottish Law Commission Report on Rape and Other Sexual Offences from 2007 a number of guiding principles that must be kept in mind before any law relating to sexual offences can be reformed. These include: clarity of the law - people need to be aware of what constitutes an illegal act; respect for sexual autonomy; protective principle; no distinction between gender and sexual orientation; the European Convention on Human Rights. The 2009 Act protects all of these principles and as such is a fantastic piece of legislation.

The SLC has stated before that there should be no open-ended sexual offences- these offences should be defined by statute in such a way that what is prohibited is expressly and comprehensively set out. Furthermore, the SLC adds that classification should be done based on the effect that the offence has on the victim. Section 1 of the 2009 Act can be seen as a major step in achieving the SLC’s aim - bringing the Scottish position into parity with that of England by broadening the definition of rape. Section 1 stipulates that a rape takes place where a man penetrates with his penis any other person’s vagina, anus or mouth without consent or without a reasonable belief that the other person has consented.

This definition achieves the SLC’s aim of removing the distinction between gender and sexual orientation. The traditional, common law crime of rape could only occur where a man penetrated the vagina of a woman. Now, the victim of the crime of rape can be a man. The 2009 Act also allows that non-consensual anal or oral penetration is to be classed as rape. Dr Michele Burman, a criminologist who wrote in support of the Act when it was at the Bill stage, condemned the restrictive and gender-specific nature of the common law offence of rape. She referred to the fact that the physiological and psychological effects on a victim can be just as severe where the victim is male, or the penetration occurs other than in the vagina. The retention of the word ‘rape’, she adds, “taps into complex social and historical meanings” of the crime - denoting the offence as a “unique indignity”. Using the word ‘rape’ to describe all non-consensual penile penetration invokes a sense of the trauma and the shame that the victim of such an offence may feel. Phrases like ‘sexual assault’ or ‘assault by penetration’ do not carry the same connotations.

Another area in which the Act has made a major step is that of consent. The Act defines consent - the first time this has ever been done in statute. Section 12 defines consent, while Section 13 sets out a non-exhaustive list of occasions where consent can be deemed to not exist. This means that ambiguity as to the nature or meaning of consent is reduced. Section 13(2)(a) deals specifically with cases where a complainer was incapable of giving consent due to the influence of drink or drugs - in such cases free agreement is deemed to have not been given. Specifically stipulating that where a complainer is extremely intoxicated they cannot have given consent is a major move - experiments with mock trials have shown that juries are more likely to find a woman to blame for being raped if she was intoxicated when the offence occurred. This new legal provision is one of the first steps in changing the public misconception that a woman is responsible for being raped if she is under the influence of alcohol at the time of the influence - a survey by Amnesty International revealed a shocking 28% of people asked think this way.

Sections 12 and 13 revolutionise the issue of consent. Prior to the Act, the issue of consent could prove problematic, especially where a jury was involved. In the case of Marr v HMA (1996), after requesting clarification the jury was told that no direction on the meaning of the word would be given by the sheriff as consent should be understood in its common, every day sense. Now juries and judges have Section 12 as a source that sets out clearly what consent is, reducing the likelihood of any uncertainty or misunderstanding.

These sections also act as a radical departure from the Morgan Defence. This defence comes from the case of DPP v Morgan, where a man told some friends that his wife would happily have sex with all of them, and if she were to struggle then they were to view it as mere pretence. The three other men were then charged with rape. The court held that as they genuinely believed that the wife was consenting, then they could not be found guilty of rape. This then became precedent, meaning that the belief could be outlandish and not based on fact while still representing the honest belief of the accused. This state of affairs has been described by Dr Burman as examining the conduct and the words spoken by the complainer in a court of law. This is quite clearly unfair - it is the accused person that is on trial, not the person who claims to be the victim of an attack. The SLC report describes how this test undermines the sexual autonomy of the complainer - getting the consent of your prospective partner shows your respect for their right to sexual freedom. Failing to do this means you are committing a wrong against that person, as well as committing a criminal offence.

The Act takes some steps to reduce the effect of Morgan in the prospective Section 16. This Section allows for ‘reasonable belief’ in the complainer’s consent. The Act states that for an accused to show he had a reasonable belief that the complainer was consenting, he must have taken “steps” to ascertain whether there was consent. The reason that a subjective test for belief in consent was not removed entirely is explained in the SLC’s report. This reason relates to the mens rea of a crime - if we compare a situation where someone makes a genuine mistake regarding whether consent was given, to a situation where someone is reckless to whether consent was given, or where someone totally ignores the lack of consent. With this comparison in mind, the accused in the former situation cannot be said to have a “guilty mind”. Is it right that this person gets convicted of rape?

The SLC proposed a ‘mixed’ objective and subjective test, which was taken up by the Scottish Parliament and now forms part of Section 16. The objective element removes the possibility of outlandish beliefs of the accused relating to consent being taken into consideration by the court. The subjective element of this test now draws the attention back to the accused person- which is only right given who is on trial.

To conclude, the Sexual Offences (Scotland) Act 2009 is a major step in the reform of the law relating to sexual offences. It moves the emphasis away from the behaviour of the complainer back onto that of the accused person - which is just as it should be; the complainer is not the one on trial. The issue of considering the complainer to also be responsible in some way is one that pervades our society and is undoubtedly a contributing factor to the low reporting and conviction rates in Scotland. Unfortunately, the issue of bringing the background of the complainer into the frame is one which still stands and is not dealt with by the 2009 Act. A shocking statistic from Scottish Government Social Research showed that seven out of ten complainers were questioned in court on their sexual history.

Leanne Bain, writing in the Aberdeen Student Law Review, described and analysed the outdated and sexist attitudes that pervade many facets of the justice system including the defence, prosecution and jury.  While the legislation has been tightened over the years, the implication that women are likely to lie about their experiences, or that a promiscuous woman in some way deserves to be raped, still pervades our society. This is incredibly damaging, and the societal view of rape is not likely to improve until the legal situation does. The 2009 Act makes a big difference, but there are still issues of fundamental importance that must be dealt with to improve the situation for complainers.