THE Lord Advocate, Elish Angiolini, yesterday launched a fierce attack on Scotland's rape laws, blaming them for the country's internationally low conviction rate.
Elish Angiolini, Scotland's Lord Advocate, has suggested that the requirement for corroboration should be watered down in an effort to increase the number of rape convictions. Picture: Neil Hanna
Speaking at a major conference on sexual offences, she rejected accusations that prosecutors in Scotland were lagging behind other nations in their handling of rape cases – despite that fact the country has one of the world's lowest conviction rates for the crime.
Scotland's top prosecutor suggested one of the pillars of the legal system – the requirement for corroboration – should be watered down to boost the number of rape convictions.
In doing so, she goes further than the Scottish Law Commission which, after its review of rape laws, stopped short of proposing a relaxation of the need for corroboration.
Only about 3.9 per cent of reported rapes in Scotland end in conviction. This is one of the lowest rates in the world, comparing with 5.6 per cent in England and Wales, and 8.2 per cent in Germany.
Widespread concern over the conviction rate is fuelling a drive to reform the law on rape, with the Scottish Government set to announce a raft of changes. A new sexual-offences bill will be unveiled later this year, following the publication of a report last month that recommended the crucial concept of consent be defined in law for the first time.
Ms Angiolini told a Rape Crisis Scotland conference that the country's rape laws were "among the most restrictive in the western world".
She said: "The requirement for corroboration is almost unique in Scots law. It is a fundamental principle of our legal system, and it is the reason why about one-third of all reported rapes are thrown out.
"What we need to do in Scotland is determine if this rule is appropriate and if it needs to be adjusted."
She went on: "It is not for me as Lord Advocate to decide on whether the requirement for corroboration should be retained – but if we are serious about reforming the law in this area, the question is at the heart of the debate and is one which we cannot avoid."
The Scottish Government has asked the Law Commission to review the law on evidence, which is regarded as one of the biggest hurdles to securing a rape conviction. Scotland is one of the few countries that requires there to be corroborative evidence before a case can be put to the jury. Ms Angiolini said the law as it stood presented "real problems" for victims of rape – but claimed the Law Commission's proposals alone would make little difference to the conviction rate.
"We must be realistic about the impact which reform of the substantive law alone will achieve, and I am therefore heartened that the cabinet secretary for justice has asked the Law Commission to review the law of evidence. Only reform of both the substantive law and the law of evidence combined will provide us with a sound framework within which to tackle attrition."
One of the ways prosecutors can overcome the corroboration hurdle is by applying the so-called Moorov rule, which allows for numerous alleged victims of similar crimes at the hands of an accused to corroborate each others' evidence. But Ms Angiolini said that courts generally allowed the rule to apply only where the offences took place over just a few years.
The Lord Advocate, who has previously attracted controversy for speaking out on other issues, including the collapse of the World's End murder trial, said she believed the Moorov doctrine should be extended to help prosecutors prove more sex crimes.
"I do consider that Moorov should be extended … to include, for example, someone who abuses younger siblings, then goes on to abuse their own children, and, eventually, their own grandchildren, over a period of 20 or 30 years," she said.
Ms Angiolini said one reason why Scotland appeared to lag behind other countries in conviction rates was because of what was classed as rape. "Comparing the conviction rate with other countries is like comparing apples with pears," she said. "We're simply not talking about the same crime.
"But when you look at the more general conviction rate, it's not very different."
She highlighted the law in New York, where a man over the age of 21 who has consensual sex is committing rape if the female is under 17. Most other western countries also class sodomy and oral penetration as rape.
"We're not social pariahs or a backwater, which might be inferred from the conviction rate. It's just that the definition is so narrow," she said.
Ms Angiolini pledged to improve the way prosecutors handle rape cases, revealing that, by summer 2009, every Crown Office representative will have to undergo special training before they can take charge of a rape prosecution.
Fiona Raitt, professor of evidence at Dundee University law school, said vast numbers of rape victims would continue to be denied justice unless the requirement for corroboration was removed.
But Donald Findlay, QC, one of the country's leading advocates, said last night that any significant weakening of the need for corroboration would be a dangerous attack on Scotland's legal system that would result in more wrongful convictions.
"Just look at what's happened in England, and see how many people have to be released after serving very long terms of imprisonment for crimes they did not commit," he said. "That tells you how important the requirement for corroboration is. I don't believe you can make any exceptions on corroboration for rape or any other crimes."
Mr Findlay also criticised the plan to create a definition of consent.
"If you wish to have a statutory definition of consent, I would need some persuading that a civil servant could do a better job of formulating that than an experienced High Court judge," he said.
Scenarios created to 'clear up confusion' over issue of consentLAST December, the Scottish Law Commission published recommendations which would lead to the most wide-reaching reform of sexual-offence laws in the country's history.
The plans would see the concept of consent in rape cases clearly defined in statute for the first time.
The commission said it was time to "clear up the confusion" surrounding consent, a key issue in trials, which is currently left up to jury members to define.
Gerry Maher, QC, who led the review, said at the time: "The law has to make absolutely clear that, just because someone is very drunk, they are not consenting to having sex."
Under the proposals, seven different scenarios in which a woman cannot be judged to have agreed to sexual activity will be laid down in law. They cover scenarios where she is intoxicated through drink or drugs, or has been threatened.
New crimes of sexual assault and sexual coercion, each carrying a maximum sentence of life imprisonment, would also be created.
The SNP government is expected to publish a new bill based on the recommendations in the spring.
The Scottish Law Commission's proposals are that consent will be defined in law as "free agreement" and non-consent scenarios will be stated in law. Seven possible situations are suggested so far:
1 The person has taken or been given alcohol or other substances and, as a result, lacks the capacity to consent, unless consent has been given earlier.
2 The person is unconscious or asleep and has not earlier given consent.
3 The person agrees or submits to sex as they are subjected to violence or the threat of violence.
4 The person agrees or submits to sex as he or she is unlawfully detained.
5 The person agrees or submits to sex because he or she has been deceived by the accused "about the nature or purpose of the activity".
6The person agrees to the act because the accused impersonates someone known to the alleged victim.
7 The only expression of agreement is made by someone other than the alleged victim.
The definition of rape will become gender-neutral, so male rape will be recognised as such.
An accused's belief that a woman consented will have to be "reasonably held" by him.
New offences of rape against children and people with a mental disorder will also be created.
Clearer definition welcome but convictions will still be difficultI THINK the general mood is that the law commission has done a very good job in putting forward proposals for a statutory definition of rape that is much clearer than the existing common law.
However, the problems they themselves might recognise is how you will prove the constituent parts of rape.
For example, under these proposals, the man must have a "reasonable belief" that the woman consented.
But there will be great difficulties in proving what is a "reasonable" belief, and therefore difficulty in proving consent.
The commission has produced a list of factual scenarios where, if the situation exists, there is deemed to be no consent and therefore the crime of rape has been committed.
For example, if a man has sex with a woman who is "very drunk", she has no capacity to consent and so that is rape.
But how will you prove that she was very drunk?
If that happened at 2am on a Saturday night and she decided on Tuesday to go to the police, that won't take you very far.
It may be that you've got a bartender who says, "Yes, I sold her 14 vodkas in an hour".
But in the absence of corroboration, there will be difficulty with proof.
The proposals are a good step.
They can clarify the definition and have an educative purpose for young people and others.
But in terms of proving it in court, the need for corroboration in Scotland will always be a major hurdle.
At (yesterday's] conference, hosted by Rape Crisis Scotland, a panel of speakers in the closing session acknowledged corroboration was a hurdle.
However, the panel thinks there may also be other ways to circumvent the problem of proof.
For example, while you could not force the accused to go into the witness box to explain why he thought a woman had consented to have sex, you might permit the court to draw negative inferences from that refusal.
• Fiona Raitt is professor of evidence at Dundee University's school of law.
Internet clip of sex assault spurs call for crackdownTHE horrific ordeal of a young mother who was allegedly gang raped in front of her children then suffered the humiliation of having the attack posted on YouTube has led to calls for tougher monitoring of the internet.
Last night internet monitoring groups and politicians called on providers to "clean up their act" immediately or face stringent legislation.
The main problem is that while internet sites such as YouTube have a "report as unsuitable" option and a 24-hour team dealing with complaints, they cannot stop offensive material being posted.
The 25-year-old woman's ordeal took place in her home after, she believes, her glass of champagne was spiked. In the video, her two children, aged two and four, can be heard clearly screaming and whimpering in fear.
Three months later a three-minute clip of the attack was posted on the YouTube video sharing website. The mobile phone footage was watched by 600 people but none of them reported it to the police.
The victim, from south London, appears to be unconscious while her attackers laugh into the camera.
Eventually she heard rumours about the footage and reported it to the police. Three youths have been arrested but no charges have been brought yet.
The scale of the internet "policing" operation can be seen against a backdrop where a site such as YouTube claims its clips are viewed 100 million times every day, with ten hours of footage added a minute.
Sarah Robertson, communications manager at Internet Watch Foundation, said: "We operate a UK hotline for people to report unsuitable material, including criminally obscene and depraved acts, child sexual abuse and racial abuse.
"If the material has originated in the UK it's dealt with very quickly. But while we may have done our job here in the UK a lot of material is hosted in the US and Russia by very computer-savvy criminals.
"Policing the internet is difficult. You can't act like old-fashioned police and just go and knock on a door."
Bill Aitken, Tory justice spokesman, said: "The benefits of the internet and technology have been immense but the downside is seen clearly and ever more frequently where people are prepared to record the most objectionable material and disseminate it.
"This is totally unacceptable and the providers carry a responsibility. They need to get their own house in order or the day may well come where legislation has to be considered.
A spokesman for the Internet Service Providers Association said internet users had a duty to report inappropriate material.
But Dr Peter Kemp, director of information services and expert on IT security at the University of Stirling, said the technological realities of the internet made policing ISPs extremely difficult.
"The difficulty lies in the way the internet was designed, which makes it incredibly difficult for anyone to police the whole enterprise," he said.
"ISPs are a series of computers whose job is to pass traffic through them as quickly as possible. A picture or words will be broken up into lots of little pieces, even passing through from different routes, meaning they can't police incomplete information.
"A company like YouTube does take complaints reasonably seriously and will deal with complaints quickly. If offensive material is posted on a site set up by individuals, you can find out who the internet provider is and under these circumstances the provider will cut the line.
"But ultimately the responsibility lies with the individual to report the material. The law is on your side."
SHAN ROSS
