Scotland: It's still rape if she's drunk

Proposed legal reforms could bring the Land of Cakes "into the 21st century."

By Lynn Harris

Published December 19, 2007 7:41PM (EST)

By most accounts, Scottish rape law has not evolved much since the age of the Picts. There is no such thing -- legally speaking -- as the rape of a man. Until 2002, defendants were permitted to question their accusers directly in court; there was no rape shield law. There are extremely high standards for corroborating evidence. Also, "a female, who had not made plain her refusal of consent to intercourse with the accused prior to becoming insensible, cannot be raped by him if he later takes sexual advantage of her whilst she is insensible." (Romantic! "Can I buy you another drink?" "Lovely, thanks. But would you be offended if I said 'no' now, just for the record? Oh, and I believe I need a corroborating witness. Barkeep!" Exit suitor.)

Now, however, legal and women's advocates are hopeful that newly proposed reforms will bring change -- not only to the letter of the law but also to the country's notoriously low conviction rate. As today's Scotsman reports: "For the first time in Scots law, the concept of consent in rape cases will be clearly defined in statute. It will also be spelled out to judges and juries that a woman cannot be held responsible for an attack on her if she was so drunk that she was incapable of agreeing to sex. The Scottish Law Commission, which published the recommendations, said it was time to 'clear up the confusion' surrounding consent, a fundamental issue in rape trials which is currently left up to jury members to define. Professor Gerry Maher, QC, who led the review, said: 'The law has to make absolutely clear that, just because someone is very drunk, they are not consenting to having sex.'"

The proposed law would actually spell out non-consent scenarios, such as "the person is unconscious."

Yes, person: The new law would also make rape gender-neutral.

There's more, and the Scotsman lays it all out in detail -- give it a read. It seems pretty likely that the reforms will be adopted; much about them (such as the gender neutralization, along with provisions for new offenses involving, say, rape of someone with a mental disorder) should ruffle few feathers. That said, "what will almost certainly prove more controversial in the courts is the principle of sexual autonomy," writes reporter Michael Howie. "This is where the deeply contentious issues around consent to sexual intercourse become the acid test of these reforms."

Lynn Harris

Award-winning journalist Lynn Harris is author of the comic novel "Death by Chick Lit" and co-creator of She also writes for the New York Times, Glamour, and many others.

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