Rape in Scotland (2009)

“No jurors were consulted in the making of this Bill” is the unfortunate disclaimer which must underline the provisions of what will become the Sexual Offences (Scotland) Act 2009. The Act remoulds the conceptual material of the Scots common law on sexual offences, codifying their elements for the first time in the distinctive language of the legislative branch, in section, subsection and clause. Although hailed by the Justice Secretary Kenny MacAskill as a “landmark piece of legislation”, and supported by the (almost) unanimous voice of our parliamentarians, is this confidence misplaced? Is the approach taken in the Act the best one?

The dismal context of this reform is familiar. In 2007 – 2008, only 3.7% of rapes recorded by the police resulted in a conviction. Only 9.7% of cases ever reach the High Court. In that setting, only 38.6% of trials see the accused convicted. Percentages are heartless tabulations, briskly shearing processes of their context, their difficulty, suffering, indignities and injustices. The lamplight of numbers is a little keener. In shadows, behind that 3.7% are nine hundred and eight women who drew police attention to their victimisation. Of these, only eighty-eight women came to stand in the witness box. Of these, only thirty four would see the accused disappear into the prison vaults, and not be set at his liberty. For the remaining fifty four women, the disappointments and brutalisations of this arduous process can only beget alienation and fresh suffering. At every stage, an enervating attrition occurs. These are the brute facts which attentive lamplight reveals about legal responses to rape in Scotland.

The persistent, niggling little question ‘why’ has produced no firm answers. Are Scots juries more riven with supposition and prejudice than the symmetrical tribunals of our European cousins? Is the legal regime befuddling, its tortuous and changing definitions confusing jurors and judges, muddling their minds and minding them to acquit the accused? Alternatively, are corroborating standards of proof to blame, circumscribing attempts to prove an indictment with unreasonably high and arbitrarily erected rules and regulations? Police behaviour, prosecution procedures, defence tactics?

Perhaps. Perhaps not. Answers vary, but all are impressionistic. The shrug has become general, and empirically grounded facts are nigh impossible to find. There are good legal reasons for this pervasive ignorance. The Contempt of Court Act 1981 hardened the seal on the jury room under direct threat of sanction, deepening the ignorant fug surrounding the motivations which exert their influence over Scottish juries. Flatly, we simply do not know how juries reach their conclusions, or why they seem reluctant to convict in cases where the charge is of rape. The optimistic may trust in the governance of laws, and assume that the sonorous directions of the presiding judge are absorbed, reflected upon, the evidence sifted rigorously and fairly. This is an article of faith, however, not evidence.

Such are the regrettable circumstances in which Holyrood legislated, refining its stratagems with clouds unbanished and without empirical material on which to draw. As a consequence, the reform around rape has been an intensely principled exercise, dominated by a widening and modernising norm of recognition. Kenny MacAskill insisted that “such attacks are perceived by their victims as rape, and it is right that the law should recognise that.” Here the law’s definitions strive to be an authentic simulacrum of human experience, where victims are regarded as experts. It is a manifestation of the idea that law ought to be a social mirror and injustice is any distortion of the reflection. Rape is depicted as the simple reality of human experience. Supporting this view, criminologist Professor Michelle Burman argued that that “‘rape’ is a powerful and weighty word which taps into complex social and historical meanings. It conveys in specific terms the nature of the offence, while its separation from other sexual crimes denotes it as a specific type of wrong, with characteristics that are quite distinct.”

In contrast, while advocate Ronnie Renucci accepted the seriousness of the offence, he raised a dissonant note worth interrogating. Rape, he argued, “is regarded, in many ways, as one of the most serious offences below murder.” However, precisely because of the strongly negative appraisal associated with the charge, Renucci believes that “juries will be reluctant to convict people of that offence if it is called rape.” The prevailing wisdom of the Holyrood reforms has been that whatever its deficiencies as a primary mechanism for cultural transformation, the new legal regime will not aggravate existing difficulties. Indeed, some more hopeful souls contend that the legislation will exert a positive influence, allowing judges to direct juries in crisp, transparent, and crucially, readily repeatable terms on the elements of crimes and doctrines of free agreement. Of course, this can only be informed speculation at best. Labour MSP Johann Lamont shared this view of the essential virtue of the new Act, saying that while “the conviction rate is as low as it is can lead to despair … today we are taking a significant step forward.”

Given the paucity of knowledge about jury deliberations in rape cases, can we share Lamont’s confidence about the onward, striving direction of the reforms? How can we assume that the new explicit statutory definitions are neutral instruments? While pessimistic critics can fairly return our attention to the rates of successful prosecution in Scotland, and query the possibility of things becoming worse, this is more glib than substantive.

What if, for the sake of argument, the interests of legal recognition and the attempts being made by the Crown Office to intensify rates of conviction are not as harmonious as may have been supposed? Here’s the nub, and the important distinction. Is the aim simply to improve conviction rates for offences, or specifically to increase the rates of conviction for specifically rape-labelled offences? The notion Renucci was alluding to is a familiar one. Precisely because of the sharp judgement which any conviction for rape rightly entails, adjudging guilt is a charged process. Given the well-attested evidentiary difficulties in cases where the material evidence will bear either an inculpatory or exculpatory interpretation, and only the question of consent is at issue, the proposition runs, it is precisely the harsh condemnatory character of conviction for rape which may lead to a pronounced caution among jurors, resulting in acquittal. Obviously, several difficulties combine in such circumstances. However, one must at least concede that it is possible that the explicit and insistent use of a vocabulary of rape has its ambivalences.

Clearly, it is far too soon fairly to determine whether the approach taken in the 2009 Act will help or hinder the needful work of improving Scotland’s treatment of rape. However, neither can that judgement be the distant prerogative of remote posterity. If the explicit language of rape in the Act proves to be a barrier, legislators must put aside their pride, uproot their landmark, and start again. How they might do so will depend on what policy objectives are to be given priority. Should the forceful and condemnatory language of rape be altered to salve the juror’s consciences? Would such concessions be sufficiently justified by an increase in conviction rates? If not, are we content to have legal concepts which are principled but inefficacious? If one regards changing social attitudes to rape as crucially important, one might be for the continuing use of the term. No concessions to vicious misogyny, the argument would run, rape is the reality of people’s experience, and thus rape it must remain in the statute books. Others, understandably, might feel discomfort with this strict approach and the continuing low rate of conviction which it might entail.

Asking “can we do things better” is always a progressive question. Unfortunately, the parliament did not choose substantively to analyse what other legal responses might be attempted. Largely eschewing the prospect of sharply and independently interrogating these, instead Holyrood largely submitted to the conceptual frame of reference indicated by the Scottish Law Commission. Obviously, other approaches would be bedevilled by the same lack of empirical data which marked the Bill as passed. Nevertheless, it is particularly regrettable that a more radical approach to rape laws was not adopted. Definitions of rape in Scots law will now be wider, including a broader range of penetrative acts under its descriptive ambit, and crucially, including men in the category of relevant victim. However, it is profoundly difficult to see the Act as a new approach to the paradigmatic cases which crucially have proved so difficult successfully to prosecute under the old dispensation. The Act is largely an instrument of codification, adjusted in its nuances, rather than a deep-seated re-imagination of our approach. While altering social attitudes to women’s sexuality and fiercely opposing messages that clothing can sanction male sexual aggression are crucial, a legal approach based on charges of rape has not been serving us well. We have no reason to suspect that a replacement charge in much the same terms will contribute helpfully as part of a coordinated engagement with police and prosecution procedures and public attitudes.

Such are the gloomy depths the law has sunk to at present, more imaginative expedients did seem to be indicated. One such expedient could have been effacing rape from the legal lexicon, addressing such circumstances as an assaults. When disposing of the guilty, judges could be encouraged to exercise wider and harsher sentencing discretion, in recognition of the extreme violence of sexual violation. However, rearranging conceptual ideas will never suffice. A coordinated approach is vital, encompassing all stages at which a complainer alleging a serious sexual assault would experience, and how state officers, lawyers and judges approach that difficult and trying experience.

It is clear that Holyrood is unprepared for a judgement that its legislative framework may prove deeply ambivalent. We must not be. Although tiring, although at times feeling vain and broken, seeming no painful inch to gain, far back, through creeks and inlets, silently in small things, progress will come flooding. Clear thinking and an empirical basis must be the foundations of this progress. This does not exist yet. Ignorance of the decision-making dynamics of Scots juries remains the anarchic variable, disposed to dip its proverbial fly into any principle-based ointment of reform. As an unknown quantity, it is disposed to tip our sensitive and trembling scales of justice this way and that. Despite all of this, way may wish to cleave to our hard won and much laboured reformation of our sexual offences. We cannot, however, avoid the risk that all of our best laid legal schemes go tragically agley. Whether Holyrood has created legal norms which in due time it shall celebrate or repent remains to be seen.