By John Bynorth Home Affairs Editor

THE Scottish government faces mounting pressure to close a loophole in its forthcoming rape bill which could see a rapist cleared if he proved his victim consented to sado-masochistic sex (S&M).

SNP MSP Nigel Don has written to the justice secretary, Kenny MacAskill, urging him re-think a recommendation in the Scottish Law Commission's (SLC) draft report on the issue, which will form the basis of the government's legislation, that an act providing "sexual gratification" between consenting people over the age of 16 should not be considered assault.

Don, Rape Crisis Scotland and police chiefs claim the proposal would allow domestic abusers to escape justice and is "against the spirit of the bill" - due to be presented to MSPs in the next few weeks - which aims to improve reporting of offences and Scotland's low conviction rates around 4%.

Pointing out there have been no recent convictions for consensual S&M in Scotland, Don said the statute would create a "loophole" which domestic sexual assault defendants could exploit.

He said: "The average victim of domestic abuse complains after 30 incidents and if the accused is allowed to claim that it was consensual sexual gratification' it would add another doubt for jurors and places the victim under further immense pressure. To allow this goes against the spirit of the bill - that violence is unacceptable."

Rape Crisis Scotland, the Association of Chief Police Officers in Scotland, Scottish Women's Aid, the Catholic Church and the Free Presbysterian Church lodged objections to the proposal in a consultation after the SLC report was published in December.

The Spanner Trust, which promotes S&M, was the only organisation to make a case in favour of the legal change.

Sandy Brindley, co-ordinator of Rape Crisis Scotland, said: "Our worry is that it could be a legislative excuse for rape by suggesting the victim might have liked it rough'."

A government spokesman said: "We have been considering the consultation responses and will shortly be introducing a bill to Parliament for consideration by MSPs."