JURORS should be questioned on why so few men accused of rape are convicted of the crime, a senior legal figure said yesterday.
Ian Duguid, QC, chairman of the Faculty of Advocates' criminal bar association, said research was needed to find out, once and for all, why Scotland's conviction rate is so low.
The Scottish Parliament's justice committee was also warned that the
new Sexual Offences Bill was "not the answer" to the problem of so few rapes ending in conviction.
The bill sets up, for the first time, a statutory definition of rape and replaces the key concept of "consent" in cases with a new term: "free agreement". It also spells out to judges and juries that a woman cannot be held responsible for an attack on her if she was so drunk that she was incapable of agreeing to sex.
These measures have raised hopes that juries will be able to convict more rapists – increasing the conviction rate, which currently stands at 2.9 per cent of all rapes reported to police.
However, Mr Duguid yesterday argued that the new legislation would make little difference to the conviction rate.
"The low conviction rate can only be addressed by asking jurors 'Why?'," he said.
"That's currently a situation precluded by the Contempt of Court Act. But that is the way forward – it isn't in trying to change the law.
"What is it that the public need to understand about the word 'consent'? Why do we need to replace it with two words? What is it people don't understand about it? Somebody needs to answer that. The way forward is to conduct proper research."
He cited recent comments from Dame Helen Mirren, the Oscar-winning actress, who said sexual jealousy meant that female jurors were less likely to sympathise with rape victims.
"That's as speculative as anything else," he said.
Alan McCreadie, the secretary of the Law Society of Scotland's criminal law committee, agreed more research was needed. "We don't know why juries don't convict in rape cases. We can speculate, but we don't know," he said.
Mr Duguid and another QC, Ronnie Renucci, warned that the shake-up to rape laws would potentially be interpreted differently by different courts and lead to a flood of appeals.
"I fear that if this bill goes through in its current form, the appeal court is going to become even busier with some of our more litigious colleagues," said Mr Renucci.
Legal challenges would arise from confusion and conflict over when a woman is so drunk she is incapable of freely agreeing to sexual intercourse, MSPs heard.
Legal changes are only one method by which campaigners hope to see an increase in the rape conviction rate.
The Crown Office is implementing an overhaul of the way sexual offences are investigated and prosecuted.
Meanwhile, a campaign was launched last month by Rape Crisis Scotland, challenging attitudes towards rape among the public that blame women for being attacked.
Police and prosecutors to treat sex attacks in same way as murderRAPE cases are to be investigated more like murder inquiries, under revised guidelines published yesterday.
Police and prosecutors will work more closely together and take a "forensic" approach to cases, the Lord Advocate, Elish Angiolini, said.
She published guidelines to chief constables in Scotland on the investigation and reporting of sexual offences.
"We are taking working practices between the police and the prosecution in this area to a new level," Ms Angiolini said.
"Rape is one of the most serious and distressing crimes we face as a society. When victims have the courage to report a rape, they must have absolute confidence that the investigation will be thorough, professional and sensitive from the outset.
"That is why, with this guidance to the police, we will now see an approach to rape investigation that is, from the outset, much closer in form to the approach taken in investigating a homicide.
"Victims can have increased confidence that police and prosecutors will be taking a forensic approach to gathering all available evidence, and analysing strengths and weaknesses in the case to bring a compelling prosecution before the court, wherever that is possible."
The guidelines were developed in consultation with the Association of Chief Police Officers in Scotland (Acpos).
Prosecutors have been making improvements to "every aspect" of the investigation and prosecution of rape and other sexual offences since publication of the Sexual Offences Review, according to the Lord Advocate.
"With this guidance, we are now in the final stage of implementation," she said.
Deputy Chief Constable Bill Skelly, for Acpos, welcomed the guidelines.
"This is a benchmark we should aspire to during each and every investigation," he said.
The full article contains 790 words and appears in The Scotsman newspaper.
