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Tuesday, 18 December, 2001, 16:36 GMT
Scots rape laws scrutinised
Distressed woman
Judges are being urged to "modernise" rape law
Scottish rape laws have been undergoing scrutiny from judges considering a controversial ruling that having sex without the woman's consent is not necessarily rape.

The review follows criticism of judge Lord Abernethy who dismissed a case against a law student because there was no evidence he used force against his alleged victim.

Scotland's most senior law officer, the Lord Advocate Colin Boyd QC, asked seven judges at the High Court in Edinburgh to rule that consent, rather than force, was the main issue in deciding whether a woman has been raped.

He told presiding judge Lord Cullen and the six other judges that the court should take the "modern view" that the act of having sex with someone who was not consenting amounted to an assault and implied the use of force.

Colin Boyd QC
Colin Boyd asked the panel to focus on consent

The panel's eventual decision will not bind a judge in any future case, but it is recognised their ruling will have the effect of creating a new legal definition of rape.

Murray Macara, a criminal lawyer with Glasgow firm Beltrami, welcomed the review.

He said: "There is so much controversy regarding rape that I think a review is overdue.

"What we want to see is clarity, what we want to see as a result of the debate that has been stimulated is some degree of certainty in the law so that as far as I am concerned, as far as lawyers are concerned, we know where we stand."

Women's groups, who were vocal in their criticism of Lord Abernethy's decision, welcomed Tuesday's hearing.

They said it shows the controversial interpretation of the law is being taken seriously.

Sandy Brindley, of the Rape Crisis Centre, said Lord Abernethy's ruling did not reflect the reality of sexual violence.

'Proof of the crime'

"Often what happens is that a woman freezes with fear or with shock and is unable to struggle or fight her attacker off," she said.

The lord advocate told the hearing that Scotland's rape laws had been formed at a time when women's social status was lower and suggested that the law should reflect the fact that society had "moved on".

Mr Boyd said: "My argument, put shortly, is that the essence of the crime of rape is lack of consent and proof of force is not necessary to the proof of the crime."

Edward Watt
Edward Watt was acquitted
He insisted he was not asking the court to rule whether or not Lord Abernethy had made a mistake in interpreting the law, but to consider the wider issues raised by the case.

Lord Abernethy acquitted 23-year-old student Edward Watt during his trial at the High Court in Aberdeen in March after upholding a claim in Mr Watt's defence that he had no case to answer.

The judge said: "To have sexual intercourse with a woman without her consent is not in itself rape."

Mr Boyd said the current definition of rape dated back to 1858, in a case where judges ruled that a woman had been raped if a man had sex with her "forcibly and against her will".

He said: "The position of women in society has changed radically since the time when they were regarded almost as a possession and had really no independent status.

"Force is not essential to the proof of the crime of rape, but where the accused knows that the woman is not consenting and continues on that basis to effect sexual intercourse without her consent, then the crime of rape is completed."

Ministers are awaiting the panel's ruling before deciding whether to bring a new law before the Scottish Parliament.

 WATCH/LISTEN
 ON THIS STORY
Reevel Alderson reports
"The hearing follows the trial of a law student"
Murray Macara and Sandy Brindley discuss the issue
"I think there is so much controversy regarding rape that I think a review is overdue"

Talking PointTALKING POINT
A defining issue
How do we define rape?
See also:

18 Dec 01 | Scotland
Past conviction plan for rape cases
25 Apr 01 | Scotland
Rape law clarification sought
23 Mar 01 | Scotland
Judge dismisses rape charge
09 Nov 00 | Scotland
Rape trial changes proposed
26 Sep 00 | Scotland
Minister to hear rape plea
26 Jun 00 | Scotland
Rape trial action plan unveiled
09 Jun 00 | Scotland
New calls for rape law re-think
07 Jun 00 | Scotland
Plea for rape evidence rethink
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