This is a subject that I feel quite passionate about and to be honest it surprises me that I have not yet blogged about it. Scottish Rape Law is wholly inadequate and out of date – despite some recent developments in it.
Rape in Scotland is still essentially a common law crime. Thus, there is almost no statutory provisions relating to rape (I will look at those which do exist later).
In 2001 the Lord Advocate (who at the time was Colin Boyd QC) issued a reference (Lord Advocates Reference (no.1 of 2001) (2002)). This ended up in the current actus reus for rape, which is “a man having sexual intercourse with a woman without her consent.”
The actus reas requires that sexual intercourse has taken place between a male and a female person. This has been interpreted very strictly by the courts of Scotland to mean “penetration of the vagina by the penis”. This restricted definition means that penetration of any other orifice or using other implements will not, in law, amount to rape (Barbour v Her Majesty’s Advocate). A boy under the age of puberty can be guilty of rape (providing he is above the age of eight and otherwise is criminally responsible and meets the requirements of the crime) as ejaculation is not necessary.
This definition also results in rape being a crime that can only be committed against a woman and the recognition of men as possible victims of rape in English law, by section 142 of the Criminal Justice and Public Order Act 1994, does not extend to Scotland.
The mens rea of rape is either intention or recklessness. The crime of rape therefore requires that the accused intended to have intercourse against the woman’s will or was reckless as to whether or not the woman was consenting. Knowledge that a woman is not consenting to intercourse or indifference to the question of her consent, where she is not consenting, will fulfil the mens rea of rape.
I did say that I would look at the statutory position of rape in Scots law. It is really quite simple! It is an offence, by virtue of the Criminal Law (Consolidation) (Scotland) Act 1995, s.5, to have sexual intercourse with a girl under the age of 12 and this will normally be charged as rape. There are other provisions within the 1995 act relating to sexual intercourse with a girl under the age of 16, but they do not relate to rape.
So, we can see in Scotland that only a woman can be raped, she can only be raped by a man and the man must place his penis in her vagina without her consent. I think you will agree that the Law relating to rape in Scotland is very out of date and is wholly inadequate. What you and I may consider as rape, and what the law in England sensibly concludes is rape, is in fact different from what the Scottish Courts have defined rape as (and so recently as well).
The Sexual Offences (Scotland) Bill has now become The Sexual Offences (Scotland) Act 2009. This will solve all of the problems above. The Act will come into force by order of Scottish Ministers.