Consent is key to rape reform, says Commission
19 Dec 07
Report on sexual offences proposes definition of consent for first time
The boundary of the criminal law in sex offences should be drawn between consensual and non-consensual sexual conduct, the Scottish Law Commission recommends today.
In its Report on Rape and Other Sexual Offences, the Commission proposes a restatement of the law based on the principles of gender neutrality, sexual autonomy and an extended definition of consent centred on "free agreement".
The report, commissioned by Scottish ministers in 2004 following two High Court cases which caused concern that the law was in a state of some confusion, comprises the first ever systematic review of Scots law on sexual offences. It contains 62 recommendations and a draft bill.
Main recommendations
The Commission believes that offences should not distinguish between male and female victims, or perpetrators. Many of the current offences are framed in a way which does not respect the principle of gender neutrality. By expanding the definition of rape to cover penile penetration of the vagina, anus and mouth without consent, both female and male victims will be protected.
By promoting the principle of sexual autonomy, the Commission aims to make non-consenting sexual conduct criminal, as it represents an invasion of the victim's sexual autonomy. It also means that consenting sexual conduct should not be criminal unless there are powerful reasons for creating an offence. "People should be free to follow their own sexual preferences provided that these are based on the genuine consent of everyone involved", said Professor Gerry Maher QC, lead commisssioner on the project.
However, consent is not defined at present and juries are expected to apply what is in their view the ordinary meaning of the word. The Commission recommends that consent should be defined in statute as meaning "free agreement". The draft bill contains a non-exhaustive list of situations in which there is no consent in this sense, such as cases where the victim was subject to violence, or threatened violence, was unconscious or asleep, or was deceived as to the identity of the other person.
There would also be no consent where the victim was so intoxicated by consuming drink or drugs that they lacked the capacity to give consent. Professor Maher said: "The law has to make it absolutely clear that just because someone is very drunk they are not consenting to having sex."
Nor should consent to one activity be taken to be consent to any other activity. Someone who consents to kissing is not consenting to having sexual intercourse. It is not rape or another sexual crime if the accused had a reasonable belief that the other party consented to the sexual activity. However, the Commission recommends that, in this situation, the accused should explain what steps he or she took to ascertain whether there was consent. It will not be enough simply to say they thought the other person was consenting.
Other offences
- The Commission also recommends creating the offence of sexual assault. This crime will be committed by various kinds of sexual attacks done without the consent of the victim. These include sexual penetrations which do not amount to rape and other forms of sexual touching or sexual contact.
- There should be new offences where the victim is coerced into taking part in or seeing sexual activity without their consent, or receiving indecent communications. These activities, said Professor Maher, are equally an invasion of the victim's sexual autonomy.
The maximum sentence for rape, sexual assault and some types of sexual coercion should be life imprisonment, and rape should continue to be tried only in the High Court.
Protection of the vulnerable
The Commission also adopts the protective principle - that there are certain people who should be protected from all sexual activity, such as young children. In addition, a more limited form of protection should cover those who may be able to consent to sexual activity but who are relatively immature or vulnerable.
There would be strict liability for offences against a child under 13, while in respect of those between 13 and 16 the accused would be allowed certain types of defence, for example that he believed, on reasonable grounds, that the child was 16 or older. Where both parties involved in consensual sexual activity are between 13 and 16 the Commission recommends that this should be a new ground for referring a child to a children's hearing, if it is thought that one or both are in need of welfare measures.
For those with a mental disorder, the Commission recommends that there should be a specific statutory provision dealing with capacity to consent to sexual activity. The person must be able to understand what the activity is, to form a decision whether to participate in the activity and to be able to communicate this decision. There would be further protection from people in a position of trust over them; a similar provision would exist for others such as teachers and medical staff in relation to pupils and patients, and adult family members in relation to children living in the same household.
Corroboration
The vast majority of the Commission's consultees were opposed to removing corroboration for sexual offence cases. The Commission has concluded that, if the rules on corroboration need reform, that issue is better examined by considering corroboration as it applies throughout the criminal law and not just in relation to sexual offences.
The report is open to public consultation and comment until 14 March 2008. The Scottish Government has already announced that it proposes to introduce a bill on rape and sexual offences into the Scottish Parliament in 2008.