Scotland redefines rape law

The law on rape which sees just 4% of reported cases end in conviction will be radically overhauled to give a clear definition of "consent" for the first time under reforms published today.

The biggest shake-up in sexual offences legislation would also create a crime of sending sexually offensive e-mails and texts, punishable by up to 10 years in jail, and the extension of the definition of rape to include attacks on men.

The Scottish Law Commission has spent three years working to clarify the current laws which have led to a number of controversial court cases. These include the acquittal of Edward Watt despite his alleged victim repeatedly saying no and the ordeal of 17-year-old Lindsay Armstrong who was raped and later committed suicide after a harrowing cross-examination in court.

The commission hopes including a definition of consent in the statute-books will offer more protection to victims and improve Scotland's rape conviction rate, presently the lowest in Europe.
 
Consent will be defined as "free agreement" between adults. Crucially, juries will be able to draw on a range of specific scenarios which outline where consent has not been given. These include when a woman is too intoxicated through drink and drugs, is threatened with violence or is deceived about what is happening.
 
At the moment, the prosecution has to prove the attacker knew his victim did not consent, leading to women being challenged in court about their behaviour leading up to the attack.

Professor Gerry Maher, QC, of the Scottish Law Commission, said: "What we are offering is clarity on what consent actually is. At present, consent is the core part of the definition of rape, but consent itself was never defined. That is the paradox.

 
"It may be that the jury bring in their own ideas about consent, so what we have done here is to bring in a detailed model of consent. We hope that by offering a legal definition of consent, it may help to change social attitudes towards it."