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Rape law 'should define consent' Rape law 'should define consent'
(10 minutes later)
A Scottish Law Commission report into sexual offences has recommended that the term "consent" is properly defined in the statute books. A definition of the term "consent" in rape cases should be placed on the statue book, a Scottish Law Commission report has recommended.
Legal experts have agreed on a list of situations where consent cannot have been given, including when the victim is too heavily intoxicated.Legal experts have agreed on a list of situations where consent cannot have been given, including when the victim is too heavily intoxicated.
The review, which was commissioned by the Scottish Government, also suggested that male rape be recognised by law.The review, which was commissioned by the Scottish Government, also suggested that male rape be recognised by law.
The measures aim to address reported rape conviction rates of less than 4%.The measures aim to address reported rape conviction rates of less than 4%.
The government, which plans to bring forward a parliamentary bill next year, has promised to carry out a consultation on the review's recommendations.The government, which plans to bring forward a parliamentary bill next year, has promised to carry out a consultation on the review's recommendations.
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Professor Gerry Maher QC, the lead commissioner on the project, stressed the need for the law to recognise equally male and female victims of rape and sexual assault. Along with defining consent as a "free agreement", the commission has put forward a list of scenarios where permission has not been given.
He recommended the definition of rape be expanded to cover penile penetration of the vagina, anus and mouth without consent. It also proposed new offences of sexual assault and sexual coercion, but decided against dropping the need for corroboration in rape cases.
Under the current law rape is limited to penile-vaginal penetration. The review follows claims that as few as one in eight victims actually report sex attacks, while recent figures show the conviction rate for reported rape cases in Scotland is just 4%.
Prof Maher said: "Having sexual offences based on gender distinction is wrong. Professor Gerry Maher, the lead commissioner on the project, said there was no one explanation for the low conviction rate.
"The law should give the same protection to men and women, and to boys and girls." But he claimed that offering a legal definition of consent will help override the preconceptions of jurors.
No-one should have to be involved in sexual activity unless they consent to it Professor Gerry Maher QC Conviction rates
The commission also recommended that the concept of consent, which juries often claim leads to confusion in a rape trial, should be defined as "free agreement". He added: "We hope that by the law setting out clearly what is and what is not consent, then a jury could not bring their own attitudes about consenting sexual behaviour to the decision making.
Prof Maher added: "No-one should have to be involved in sexual activity unless they consent to it. "They would have to apply the law as it will become.
"Yet the present law does not say what consent means. We have recommended a detailed definition so that people can know what consent is and what is not." "If it is the case that one of the factors that explains conviction rates is social attitudes, then if you change social attitudes then clearly that would have an impact on conviction rates."
Consent could not be given where the victim had been subject to violence, unconscious or asleep or where the victim had been deceived as the identity of her attacker, he said. The "non-exhaustive" list put forward by the report defining when consent has not been given contains seven different situations.
Special offences aimed at protecting children under 13 should also be introduced, according to the report. Today's report brings us a significant step closer to achieving what I hope will be widely-welcomed reforms to benefit both the victims of sexual crimes Kenny MacAskillJustice secretary
These include when a person is unconscious or asleep, when they agreed under threat of violence, are held captive or deceived about what is happening.
Permission is also not given when a person agrees because the accused impersonated someone known by the victim or when agreement was made by a third party.
It also includes when a person has taken too much alcohol or drugs to be capable of consenting, unless permission was given earlier.
Prof Maher stressed the need for the law to recognise equally male and female victims of rape and sexual assault.
Justice Secretary Kenny MacAskill acknowledged there had been considerable public, professional and academic concern that the current law on rape was unsatisfactory.
He said a consultation would be held on the commission's findings and that a bill would be brought forward by next May.
Mr MacAskill said: "Today's report brings us a significant step closer to achieving what I hope will be widely-welcomed reforms to benefit both the victims of sexual crimes - some of society's most vulnerable individuals - and society as a whole."