The new SNP Scottish Government promise to radically change rape law in Scotland. Currently, rape, in the eyes of the law, consists only of the penetration of a vagina by a penis. So anal rape, rape with a object, a finger, forced oral sex or masturbation are classed as an assault - the same crime as slapping someone. They say they're going to change that.
And they say they're going to put the burden of proof on the rapist - he must proove that he got consent, rather than the victim having to proove that she did not consent.
Only time can tell if they'll deliver! Though I doubt it.

You can see the prevailing attitude towards rape and violence against women in the comments after the Scotsman article.

And Scotland has one of, if not THE most macho culture in the Western world.

See this too: http://news.bbc.co.uk/1/hi/scotland/glasgow_and_west/6989826.stm

Sigh.

Love Scotland; hate most of my fellow Scots.

Long time reader, first time poster.

I had to respond to this because as an American living in Scotland for the last four years, I have continuously been shocked and appalled at the lack of conviction and, IMO, proper punishment in cases of victimization of women - rape, assault, sexual assault - it just seems as if the entire system needs an overhaul in this particular area.

That said, I must admit that I have felt safe the majority of the time I have lived here, and I have never encountered the blatant misogyny I came face to face with on a daily basis while living and working in the US.

I truly hope the SNP will follow through with their promises to change the law where rape cases are concerned.

Hi, I am a new (but regular!) reader so I am requesting a clarification (this might have been covered in past posts). Why is the statement bold in the post above? Is it because it took so long to end the practice or because the practice was recently ended and should not have been ended? I can't tell.

Though I have some minor legal concerns, I think there are very good reasons why the accused should not be allowed to question the alleged rape victim; I think that can be quite traumatic for the victim.

"...despite a previous victim committing suicide after being forced to show her underwear in court."

What, if she was wearing a lace thong then she wanted it more than if she was wearing cotton bloomers? I hate everything.

Andrea, according to the article, she was forced to actually hold the underwear she had been wearing up IN COURT. What.the.fuck. When I read this here, I thought that perhaps a lawyer showed them or something. But no. She was forced to hold her own underwear up in a full court. Despicable.

commiewimp - They are going to change from a presumption of innocence to a presumption of guilt?

It only became illegal for those charged with rape to cross-examine their alleged victims in person in England and Wales eight years ago (Youth Justice and Criminal Evidence Act 1999, sec. 34); this didn't change Scots law.

There is generally an idea that people charged with crimes should have the "right to confront their accuser", and though that makes sense in general, of course in this particular case it's a really really bad idea and they did the right thing to abolish it.

I am not a lawyer.

(So what I mean is, Scotland may have abolished it in 2002, but they were only three years later than the rest of the UK.)

I can't tell whether they mean that the accused *personally* questions the accuser (which is fucked up; OR whether the accused is present while his attorney questions the accuser (what we do in the U.S.).

And, are they talking about cross-examination in court under oath or out-of-court investigation type questions?

noname: It's not a presumption of guilt to require the defendant to put on evidence in support of his asserted defense. In the U.S., at least, the prosecutor has to disprove the asserted defense - but the defendant isn't entitled to assert the defense unless there's some evidence to support it. (typically, his own testimony).

Q - commiewimp said that the accused will have to PROVE consent. Since consent is usually the issue in rape cases (as opposed to the more rare “no sex� defense), this is, in effect, a presumption of guilt for those cases.

Okay, so basically the attitude of Scottish law is that once a woman's given consent to have sex with a man once, she's given consent to have sex with every single man in the world, at any time and under any circumstances?!? Or if she wears cute underwear, she's automatically consented to have sex with any and every man on earth? WTF?!?

Also, and I know it's beside the point, but doesn't the attitude underlying this law also kind of insult men by presuming that all men are the same, ie, that if a woman has sex with one guy because she thinks he's cool and nice, she must automatically also want to have sex with some scumbag with kills puppies and molests children, because once she's consented to sex with one guy she's consented to sex with them all? If you take this policy to its logical conclusion, a rapist is just the same and just as worthy of his freedom as a guy who gets consent, as long as the woman in question has had sex before or wears cute underwear. Also, I'm thinking this is an appropriate time to re-post this gem.

Fuck. I always thought Scotland seemed like a really cool place that I'd like to visit on my next vacation, but now I'm thinking it can go fuck itself.

Oh fuck, I just read the article from the rape crisis group, and women who are bringing rape cases in Scotland are also asked about sex aids and drug use?!? So let me get this straight: If you've ever used a vibrator or smoked pot, you're also consenting to sex with every man on the planet. Yeah, I totally see the connection, because see, there are hormones in pot that make women want to have sex with every man on the planet, no matter how disgusting he is, and once those hormones are in your body, they're there forever. However, these same hormones, for whatever inexplicable reason, also make women want to falsely accuse men of rape after sex, and that stays in our bodies forever, too. However, men simply smoke pot to relax and eat junk food. See! The sexes really ARE from different planets after all, ZOMG!!!!!

Furthermore, in the interests of fairness, perhaps Scotland should start asking robbery victims questions about their financial situation, as well as adding several completely irrelevant questions about whether they ever play games that involve Monopoly money or other fake money. If a person is deemed to have had money in the past or played games involving fake money, it will lessen the chances that the people who robbed them will be found guilty. They can also apply the questions about drug use to robbery victims, since that has about as much relevance as asking rape survivors about drug use. Pretty soon it will also become impossible to have been robbed in Scotland unless you've never had money, never played with fake money, or smoked weed! It all makes such PERFECT sense!!!

Good to know how wonderfully advanced those Europeans are!

Because obviously if you've had sex with even one person you're so loose that you're open to anyone that wants in.

Goddamn.

I don't want to come across so harsh on my first comment here, but I'm going to have to disagree with you on calling the right for the accused to question their accuser, "heinous".

If you're accused of a crime, you should have the right to both see your accuser in court, and challenge their accusation yourself. That might come across as a terribly unsympathetic view in the context of rape trials, but I'm looking at the wider picture of all cases here, and I don't think making such a big exception in court procedure for rape cases is a good idea.

Absolutely there should be procedures and rules that prevent witnesses getting harassed and intimidated. I also think that the victims past sexual relationships and habits should not be allowed to be brought up in rape trials.

But rules like not being allowed to face your accuser, and even allowing the victim to give evidence via video link is in my opinion going too far. People have the right to a fair trial, in public, and they have a right to face their accusers.

You may argue about rape victims rights, but I'm arguing about everyone's rights. The right to a fair trial in an open court, with evidence given, and challenged, in public. I think watering down our open justice system, even for rape cases, is too dangerous. It crosses the line too far into secret court territory.

My main objective here is to defend the court system, which, though it may seem harsh, I consider to be something bigger than any one case type, even rape cases.

I'll finish up by saying that if someone wants justice for a crime committed against them or their person, they need to have the confidence and the determination to stand and give their evidence in an open court, because an open court is the only place real justice can come from. That might sound harsh, but if it's a choice between being harsh and diluting the law, I'll have to choose harsh.

Riann: Right on the money. I can never understand why people support suspending the sixth amendment in rape cases. Challenging your accuser is a FUNDAMENTAL RIGHT, which should never be taken away, no matter the consequences.

So in the U.S. if one is accused of rape, can he represent himself and examine his accuser?

I can't really think of any reason why they couldn't other than it might piss off the jury.

jm7316 (+Riann),

There are many circumstances in which a someone might not give evidence in person in court. It is unusual for it to happen in a rape trial, but may sometimes be necessary.

jm7316 - Scotland doesn't have a Sixth amendment, because the admendment you refer to regards the U.S. Constitution.

Scotland isn't bound by the U.S. Constitution.

Can you really not think of any circumstances where a rape victim might not be able to testify in court, in person?

Exceptions ARE made in other kinds of trials, so why not in rape trials?

Just because someone gives evidence via video link doesn't mean they can't be questioned.

One of the reasons cited by many rape victims for not reporting their rapists is that they don't want to have to face them in court.

Surely we would ALL like to see EVERY rape prosecuted, and if making the rape victim as comfortable as possible is a way of achieving this, then what's the problem?

Also, if you want to keep your dinner down, I advise you not to read the comments section in the article that this story is linked to.

anorak: My mistake. Let's go for something a little more encompassing.

Universal Declaration of Human Rights, Article 11, Part (1):

Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.

And yes, in an ideal world, I agree, every rape should be prosecuted to the fullest extent. Being able to confront your accuser and their witnesses is a cornerstone of the legal process.

The right to face one's accuser does not mean that the accused always has the right to look at, talk to, get information about, the accuser. The main point is more about preventing secret accusations that could lead to a witch hunt scenario. There are many situations in the U.S. legal system in which the right to face one's accuser is weighed against an other issue. For example, in an organized crime case, a witness/accuser can have the right to anonymity due to the danger associated with testifying in open court. In those cases, the accuser may speak with the Judge in closed chambers, and then a typed copy of his/her testimony is provided in court. The Judge can rule that the danger posed to the accuser's life outweighs the accused's right to face the accuser. Also, if the accused is being disruptive/explicitly threatening in court, the Judge has the power to have him/her removed for any portion of the trial. I personally believe there should be a set of rules as to how these situations should be conducted in sensitive situations (such as rapes, attempted murders, etc) to prevent both re-victimization and the under-reporting of the crimes.

I don't know how it works over there, but here, the accused would not be likely to "confront" their accuser; that's why they have a lawyer defending them.

If the accuser is not physically in the room, that does not stop the defendant from receiving "all the guarantees necessary for his defence".

Evidence is routinely given via video link.
It does not inhibit a full and fair trial.

This article is primarily criticising the amount of scrutiny a rape victim is put under when her case comes to court.

If you read the article, you will see in Scotland that they have something like a 3.8% conviction rate.
It seems pretty unlikely that 96.2% of accusers are lying, right?

So maybe we need to think about ways to conduct rape trials that are not biased against rape victims, as they seem to be at the moment.

I mean, shit, can you think of any other crime where the rates of conviction are so damn low?
Less than 5% conviction rate.
It's a wonder anyone ever reports their rapist in Scotland at all.

And thanks Natalie!
You actually went through and thought of scenerios to prove your (and my) points, whereas lazy me couldn't be bothered.
High Five!

Another reason the practice of interrogating victims on their sexual history is so APPALLING is the flipside: it is illegal for any mention of the accused criminal history to be raised in court. It's the worst case of hypocrisy in the law ever.

For example, in the World's End case (don't know if it's in the news outside of Scotland?) the accused was already serving jailtime for raping a child, raping and then murdering a child, the rape of 11 more children (though it's suspected the number was actually as high as 20 or 30), sexually assaulting and murdering a teenage girl, and is under suspicion for a number of rapes and murders around the same period.
His semen was found all over the bodies of Christine Eadie and Helen Scott.
But as the court wasn't allowed to consider anything other than the evidence in this particular case, and he claimed that they consented to group sex with him and that his dead brother-in-law must have raped and killed them later on in the night. The young women obviously weren't around to contradict his claim, so the case was flung out of court for lack of evidence.
It's sickening.

(You can read about the World's End case here http://news.bbc.co.uk/1/hi/scotland/edinburgh_and_east/6986995.stm if you've not heard of it.)

noname: one of the reasons for rape convictions being so low in Scotland is the prevailing attitude that, unless you've got the physical evidence (injuries) to prove that you didn't consent, there was no rape. in a society where men have been conditioned since birth to consider sex with women as being their right (particularly if the woman is drunk, has been out with him, wearing a skirt, etc) and when women say 'no' they're just playing hard to get and really mean 'yes', if a man wants to prove he hasn't raped a women, he should have to prove that she consented to sex, NOT be able to say that consent was assumed or implied, and that he thought she wanted to.

There have been many cases in Scotland where women have been raped when so drunk they've been unable to speak and drifting in and out of consciousness, and the rapist has got away with it, because the victim couldn't prove she didn't consent - she didn't fight him off, so she must have consented, right?

Men should not just plough into sexual activity and wait for women to have to say 'no' or physically fight them off - we should be going into sex on equal grounds, being comfortable with our partners and saying 'YES' to want we want to do.

That said, I have basically zero faith in the SNP fulfilling their promise on this one. :(

and, ponies and rainbows: Scotland is a wonderful amazing place and you should definitely come for a visit! The government and the law are shit - that doesn't mean the country is. The government and law in America and Canada and every other Western place are just as shitty and anti-woman - that doesn't mean the country itself and the people that live there aren't lovely.

Feminism is on much sturdier legs in Scotland than in many other Western countries, in fact.

I'll pre-face this by saying that if I am ever ona jury in a rape trial I'll be sorely tempted to convict regardless of the evidence on the basis it's a miracle the case actually made it to court.

On the issue of changing the law to put the burden of proof on the guy - I can think of three or four occasions in my life where I would be able to 'prove' the girl I was with gave consent - mainly because we were caught in the act or had a third person there. All the rest of the time the only 'proof' I could offer was my word.

If the law was changed so that the guy had to prove he got consent then basically it would enable any woman who had been in a sexual relationship to get an automatic conviction on the guy she was with. In the same way that currently without any other evidence past "he said/she said" the guy gets an automatic aquital. Both systems are broken, but there is no realistic middle ground until we invent mind-reading.

in a society where men have been conditioned since birth to consider sex with women as being their right

Wow, commiewimp, I must have missed that lesson.

Ithika:

It's not an overt lesson, but it is one presented by much of society. I have seen a few studies where men admitted to actions that constitute rape or attempted rape but then the majority of them also felt their actions were 'definately not rape/attempted rape'.

Men are normally taught it's wrong to grab a girl off the street and rape her, but they are not taught that it is wrong to rape a girl who is drunk/passed out and when 'no' really does mean 'no' - in some cases such behavior is even glorified.

Men are normally taught it's wrong to grab a girl off the street and rape her

Not according to commiewimp. Look at that statement again, with emphasis:

in a society where men have been conditioned since birth to consider sex with women as being their right

A right. That's so far beyond reasonable hyperbole as to be utterly irrational. If that were really the case civilised society would be completely impossible.

Ithika,

Do you wan't to quote her comment in context?

"in a society where men have been conditioned since birth to consider sex with women as being their right [b](particularly if the woman is drunk, has been out with him, wearing a skirt, etc) and when women say 'no' they're just playing hard to get and really mean 'yes'[/b]

As an American who worked in Scotland for several years, my impression was that there is a level of misogyny in that country almost like that in the US of the 1950's. Not everywhere and not everyone, of course. But I felt like I had gone back in time. There was also a surprising acceptance of public drunkenness.

Aside from that I found the Scots very friendly, fun people -- but that's a big aside.

EhSteve, I don't know if this is the statistic you were referring to -- a little less than halfway through the article (under the subheading "Prevalence") it shows that 84 percent of men who committed rape didn't consider their actions to be rape.

And Ithika, you might be interested to learn that a number of studies have been done giving men a situation where they could rape a woman and asking if they'd do it. The number of men who say they would usually ranges anywhere from 30 percent to 60 percent, and let's not forget the story from a while back showing that over half of all Norwegian men think a woman deserves to be raped if she flirts with a man.

ponies and rainbows,

yep - that's the one, though I've seen it reported in different papers it was the same study (I think). The stats on the female side are in some ways even more disturbing such as:

"Only 27 percent of those women whose sexual assault met the legal definition of rape thought of themselves as rape victims."

combined with:

"82 percent of the victims said that the experience had permanently changed them."

Everything about this issue is fucked up. People really need some education on this stuff the be hammered into them.

As horrific as I find the conviction rate for rape here and the practice of 'investigating' a woman's sexual history, I have to say I find some of the comments from folk (like how being in Scotland was like going back to 50s America) a wee bitty ridiculous.

I think it's futile and silly to get in a pissing contest along the lines of "Your country is more backward and misogynist than my country!" but if folk are going to talk about Scotland being in a time warp then it's probably wise that I remind people here of a few of the progressive things that have happened affecting women and LGBT folk since the Scottish Parliament opened.

- Parly passed legislation making it an offence to attempt to stop a woman breastfeeding in a public place.
- Scrapped Section 28 which prevented local authorities from promoting homosexuality as acceptable.
- Civil partnerships

To name a few. Abortion (though not on demand) is legal. Also, despite what happened later, in 2003 we saw the election of openly socialist, feminist politicans; most of whom were women. We also now have a new Lord Advocate (the highest law officer in Scotland) called Eilish Angiolini who has openly expressed her disgust at the conviction rate for rape and her wish to completely overhaul the way rape trials work. She has also criticised the judge who threw out the World's End murder trial in a speech to the Scottish Parliament.

So, you know, enough of the wee suggestions that we're somehow a more 'backwards' country than others. As for the "public drunkenness", drinking in public is now illegal in Glasgow and a couple of other towns. Heavy drinking can cause problems (long term alcoholism and more immediate fights) but if you're talking about people being obviously drunk but not doing anybody harm, then I don't really see the problem.

You can see the prevailing attitude towards rape and violence against women in the comments after the Scotsman article.games