If I’ve been inactive during the last week, it’s not least because I’ve been otherwise engaged. I’ve been on the jury for a trial in the High Court, where a man was accused of rape. I am not at liberty to reveal any part of the jury’s discussions, but I can comment on the law.
The law relating to rape was restated in Scotland in the Sexual Offences (Scotland) Act 2009. Section 1 begins in these terms:
If a person (“A”), with A’s penis—
(a) without another person (“B”) consenting, and
(b) without any reasonable belief that B consents,
penetrates to any extent, either intending to do so or reckless as to whether there is penetration, the vagina, anus or mouth of B then A commits an offence, to be known as the offence of rape.
There are several elements in this. The most important are
- the identity of the person,
- the act of penetration,
- intention, and
- the ‘reasonable belief’ of the perpetrator.
The case was found to be ‘not proven’: a verdict available in Scottish law that is treated in practice as equivalent to acquittal, but which is distinctly not the same as ‘not guilty’. There is a presumption of innocence, and it is for the prosecution to establish the case. That must extend to every aspect of the crime, and in this case it did not.
I’ve commented previously on some of the problems with the law relating to rape, particularly the focus on consent. This case has made me aware of another. The statute adds the rider of a ‘reasonable belief’ in consent to a whole slew of sexual offences, including rape, exposure, voyeurism and drugging people. “Even the devil”, the legal proverb runs, “knows not the mind of man.” Rape and most other sexual offences should be a matter of strict liability: what matters is how people behave.