On Monday of this week, the School of Law hosted a seminar on the reform of the law of sexual offences, with delegates both from Scotland and Sweden. The seminar formed part of a visit to Scotland by members of the Swedish Sexual Offences Commission of 2014.
Why might a delegation from Sweden be interested in Scots law in particular? One of the major issues which the 2014 Commission has to consider is whether Sweden should introduce a “consent-based model” of rape.
From a Scottish perspective, it might seem surprising that such a question is even being asked. When, in 2001, an Aberdeen trial judge acquitted a man accused of rape on the basis that there was no evidence that he had used or threatened force, there was a public outcry. For most people, it seemed self-evident that the offence of rape should be based on the absence of consent and not the use or threat of force. The Lord Advocate subsequently referred the issue to the High Court for a decision, where seven judges held (by a majority) in Lord Advocate’s Reference (No 1 of 2001) that the offence of rape should indeed be defined on the basis of the complainer’s lack of consent.
That model is reflected in the statutory law of rape now found in the Sexual Offences (Scotland) Act 2009. Although the Scottish Law Commission, in its work leading up to the 2009 Act, did consider whether rape should be defined in some other way, it felt able to conclude without any real difficulty that a consent-based model was appropriate.
The debate in Sweden provides a striking contrast. There, the offence of rape requires that the accused compelled the complainer into sexual intercourse through force or the threat of an unlawful act. The law also treats certain situations as analogous to force, and therefore also rape: following reforms which came into force in 2013, these are now defined as cases where the accused took undue advantage of the complainer being for example, asleep, unconscious, under the influence of drink, drugs, injury, illness, fear or mental disorder or otherwise in a “particularly vulnerable position”. [A translation of the relevant Swedish provisions by Christoffer Wong is available here.]
It has been argued in Sweden that the current position is inadequate and may be a violation of the European Convention on Human Rights, given the 2003 decision of the European Court of Human Rights in MC v Bulgaria, which requires that the state protect individuals against non-consensual sexual conduct. Against this, others are sceptical that a consent-based law would provide greater protection for victims of rape. In principle, a force-based law requires the court to consider what the accused did (did they use force or threat, or otherwise exploit the complainer?), while a consent-based law seems to require instead consideration of what the complainer did (did they consent?). There is, therefore, a fear that a consent-based law would make rape trials even more traumatic than they may be already, by shifting the focus to the complainer’s actions instead of the accused’s.
It may surprise those familiar with common law systems to know that defining rape by reference to consent, while the default position in the English-speaking world, is not in fact the default position elsewhere. (See e.g. the force-based definitions in s 177 of the German Criminal Code or ch 19 of the Norwegian Penal Code.) Scotland therefore provides a useful model for two reasons: (a) we underwent a relatively recent transition from a force-based model of rape to a consent-based one and (b) because we reformed our law of sexual offences as recently as 2009, we now have one of the most modern accounts of the law of sexual offences in the English-speaking world. (Unsystematic common law systems do not provide attractive models for export; codified ones – or at least well-codified ones! – do.)
The Swedish commission will report in late 2016. If Sweden does move to a consent-based model of rape as a result, Scotland’s influence in this development will be a point of interest.
We are grateful to all those who participated in the seminar, which, in addition to academics and members of the Swedish Commission, included representatives of Crown Office, Police Scotland, Rape Crisis Scotland, Scottish Women’s Aid, the judiciary and the defence bar. This post should not be taken to represent the views of the Swedish Commission or any seminar participants other than the author. James Chalmers acknowledges the support of the Leverhulme Trust.