A man plies a woman with alcohol in a bar. She becomes extremely drunk and later they end up in bed. A man falsely tells a woman that he's a famous footballer and very rich. He tells her that if she has sex with him he will start to date her. A man finds a woman asleep on a bed at a party. She is too drunk to wake up and he has sex with her anyway.

How do you decide if any of these instances are rape? These are the sort of situations jurors sitting on rape trials are faced with every day in Scotland and this is why new laws have been proposed to clarify the legislation on rape and sexual offences and which, crucially, define the nature of consent for the first time.

Consent is at the crux of almost every rape trial which gets to court - which is just one in 10 of the number of rape allegations made - but, incredibly, no definition has ever been written in Scots law.

By clearly defining consent in the statute books, it is hoped that the poor 4.3% conviction rate of rape trials, the worst in Europe, will improve. It is also hoped that the moral reservations held by the public over a woman's behaviour and her right to say no to sex will also be shaken up if the description of consent is enshrined in law.

Professor Gerry Maher, QC, of the Scottish Law Commission (SLC), said: "It is an area of law that impacts on society generally, yet it seems strange that there are so many gaps and lack of definition and confusion as to where the law actually stands. If people are to regulate their sexual activity, we must bring clarity to the law. It is also about social attitudes that the jury may have.

"We hope that by setting out the law, the jury could not apply their own attitudes. They would have to instead apply the law to their decision.

"I think what we propose first and foremost brings clarity to the law. A lot of juries have been given guidance on what consent is but it is hoped that by defining it in law, it may have an impact on social attitudes towards consent."

The new definition of consent is "free agreement" between adults and that definition will now be backed up by a number of scenarios which can guide juries to whether the alleged victim has consented to sex.

If the prosecution can prove that any of the scenarios has been at play during the incident at the heart of the alleged crime, then it has been proved that consent has not been in place.

The first scenario which is moving towards enshrinement in Scots law concerns intoxication. Some members of a jury may believe that a woman who gets drunk with a stranger and goes back to his house must have been willing to have sex - not necessarily so under the new guidelines.

While the SLC acknowledges that some people under the influence of drink and drugs are able to give consent, it recognises that there are levels of intoxication which rob a person of the capacity to consent.

If those levels of intoxication are present, then the person does not have "free agreement" to engage in sexual intercourse.

The report states: "It sends a signal that anyone dealing with someone who is intoxicated is put on notice that that person may not be able to give consent to sex no matter what she says or does.

"The definition also helps in countering any social stereotype that people who are drunk, especially young women, are by that very fact consenting to sex and are to shoulder the full blame for any unwanted sex which follows."

It also covers cases where deception is involved. In the footballer case outlined above, the lies told were not crucial to the decision to have sex, so no rape occurred. It would be different, however, if the man was pretending to be a doctor and persuaded a mentally disabled woman that sex was part of a medical examination.

The law used to define rape as intercourse committed under force or threat of force. This was changed following the acquittal of Edward Hall, in 2001, who had been accused of raping an Aberdeen University student. The woman said no, but there was no evidence that he had "forced" her to have sex. A public outcry followed and the definition of rape was changed to intercourse without consent.

While it was seen as a step forward in the way the legal world dealt with rape, the amendment threw up a new problem. The prosecution now had to prove that the accused man knew the other party did not consent. This led to several rape cases being thrown out of court because there was insufficient evidence in relation to the accused's state of mind.

The issue of mens rea - of guilty mind - is to be tightened up under proposals in the new SLC report.

Mr Mahey said: "The existing law states that if the accused honestly believed that the woman was consenting, even if he based it on unreasonable grounds, that would be the end of it.

"We're proposing that the approach becomes more objective. If the accused says that he believed the woman was consenting, there has got to be a reasonable basis on having that belief. In assessing this whole question of reasonable belief, the jury can look at what he did or failed to do regarding securing consent."

For Professor Mahey, the issue is straightforward.

He said: "If he did not take any steps and there is no consent the jury could find that the man was of mens rea.

"If two people consent it is not difficult to find out what each other is thinking. Sometimes it is a question of simply asking."

Scenarios useful, but trials still an ordeal


CASES of rape are fraught with confusions and it is important that the law is as clear as possible.

The current definition of rape in Scotland is far too narrow, and I fully support the step to update this to make it more reflective of victims' experiences.

I think the scenarios set out in the report will prove useful. The one regarding rape under the influence of alcohol is particularly welcome as many women drunk at the time of the assault have been blamed. Now the commission has formally recognised that if someone is so drunk that they cannot consent, it is rape.

Currently, the ambiguity of what counts as consent means rape is almost unprovable without the victim having sustained injuries.

The prosecution needs to prove intercourse took place, the female did not consent and that the man knew there was a lack of consent.

Fortunately, the report addressed this problem by enabling a jury to convict if the accused failed to take sufficient steps to find whether the woman consented. We welcome any suggestions to look at the steps the accused took.

However, one problem the report fails to touch on is the use of sexual history evidence in court. Under 10% of reported rapes make it to court, and those that do can be a significant ordeal for women involved.

A recent survey found that in seven out of 10 rape trials, women were asked about their sexual history and character. Defence lawyers use stereotypes about the way women should behave to make the victims sound promiscuous.

This is a serious deterrent to women coming forward. If the law does not tackle this then it won't get to the heart of the problem.

  • Sandy Brindley is the national co-ordinator of Rape Crisis Scotland