Eight Meeting the challenge? Responding to rape in Scotland

The past decade has seen vigorous activity in Scotland in relation to responses to rape and sexual assault. This has included significant legal, procedural and policy change, as well as support for a hard-hitting public awareness campaign by Rape Crisis Scotland. Yet Scotland continues to have one of the lowest conviction rates for rape in Europe, with recent Scottish government figures showing that only 3% of rapes recorded by the police lead to a conviction (Scottish Government, 2009a). This chapter outlines the Scottish legislative and policy response to rape, discusses some of the problems facing survivors of sexual violence in their search for justice, considers the possible impact of some of the developments in recent years, and suggests some possible future directions.

Unlike other European countries (see Hagemann-White, 2001), there have been no national prevalence studies of rape undertaken in Scotland, despite calls from the United Nations and Council of Europe reiterating the need for baseline measures that establish the scale of the problem (Lovett and Kelly, 2009). While there are plans to introduce a sexual violence self-completion module into the Scottish Crime and Victimisation Survey, it will be some time before data will be available.

The Scottish government is acknowledged to be at the international forefront of work to tackle violence against women (Coy et al, 2008; Coy and Kelly, 2009). Scotland's innovative domestic abuse strategy has been in place for over a decade, and has since been broadened to cover all forms of violence against women.

Since its inception following devolution in 1999, the Scottish parliament has also demonstrated a commitment to tackling violence against women, in particular domestic abuse, although significant work had already been undertaken in this area before the parliament was established, by both women's organisations and statutory agencies (see COSLA, 1998). In November 2000, the Scottish Executive published a National Strategy to Address Domestic Abuse (Scottish Executive, 2000a), which placed a requirement on local authorities and health boards to establish local partnerships to tackle domestic abuse. The Scottish Executive provided £18 million through the Domestic Abuse Service Development Fund to support the work of the partnerships, and established the National Group on Domestic Abuse to monitor the implementation of the strategy.

In common with other UK jurisdictions, Scotland has developed partnership and inter-agency working protocols with a primary focus on crime prevention and community safety. Violence against women, in particular domestic abuse, is currently situated as a community safety concern, and domestic abuse is included within both national and local community safety initiatives. The recognition of domestic abuse as a community safety concern has resulted in awareness-raising campaigns, improved accessibility to services for those affected by domestic abuse, and the appointment of specialised coordinators to oversee the implementation of local policies.

In November 2002, in what would become an annual event, the Scottish parliament debated the issue of ‘violence against women’. The (then) Minister for Social Justice announced that the National Group to Address Domestic Abuse would widen its remit to include all forms of violence against women, and would be renamed the National Group to Address Violence Against Women (Greenan, 2004).

The Scottish government has incepted an integrated, broad and strategic approach to tackling violence against women, and is the only UK jurisdiction to adopt an explicitly gendered approach (Coy et al, 2008). In doing so, it has drawn greatly on the definition of violence against women contained within the 1993 United Nations Declaration on the Elimination of Violence Against Women, which views such violence as a form of gender inequality, taking the form of actions that result in physical, sexual and psychological harm or suffering to women and children, or affront to their human dignity, including threats, coercion or deprivation of liberty, whether occurring in public or private life. A broad definition has been adopted that covers different forms of violence against women – including emotional, psychological, sexual and physical abuse, coercion and constraints – and which makes the links between domestic abuse, rape and sexual assault, child sexual abuse, honour crimes and commercial sexual exploitation.

Violence against women is seen by the Scottish government as having its roots in the inequality between men and women in society. There is a clear acknowledgement that acts of violence and abusive behaviour are perpetrated predominantly by men, and affect women and children disproportionately, and tackling violence against women is stated as a prerequisite to reducing inequality between women and men in Scotland (Scottish Executive, 2000a; Scottish Government, 2009b). The recent publication Safer Lives, Changed Lives: A Shared Approach to Tackling Violence Against Women (Scottish Government, 2009b) explicitly recognised that violence against women is not only a consequence of gender inequality, it also perpetuates it. The document (re)states that the protection of women and children from all forms of violence is a governmental high priority, and provides a definition, a set of guiding principles and a focus for multi-agency activities and partnership working with the aim to ‘provide a shared understanding and approach which will guide the work of all partners to tackle violence against women in Scotland’ (Scottish Government, 2009b).

Rape Crisis Scotland, the national office for the Rape Crisis movement in Scotland, was established towards the end of 2002, with funding from the Scottish Executive. Although Rape Crisis Centres had been in existence in Scotland from 1976, since the establishment of the first centre in Glasgow, this was the first time the Rape Crisis movement in Scotland had a national office to liaise with government and provide a strategic national voice.

In 2004, the creation of two new funding streams was announced – the Rape Crisis Specific Fund (RCSF) and the Violence Against Women Fund (VAWF). The RCSF in particular has made a significant difference to the Rape Crisis movement in Scotland, by allocating funding of £ 50,000 per year for every Rape Crisis Centre, thereby guaranteeing a basic level of capacity. The RCSF also provided funding for the development of new Rape Crisis Centres, in Lanarkshire, Western Isles, Argyll and Bute, and Perth and Kinross. In an article in the New Statesman entitled ‘Scotland leads the way’, the Communities Minister stated that ‘one of the most satisfying decisions of my ministerial career was my decision to provide Rape Crisis Scotland with the funding it had been crying out for’ (Curran, 2008). Rape Crisis Scotland also received funding from the Scottish Executive to develop and establish a national Rape Crisis helpline, to provide initial and crisis support to anyone affected by sexual violence. This helpline opened in October 2007, and is open from 6pm until midnight every day. The RCSF funding for the national helpline and funding for Rape Crisis Scotland have all been continued under the new SNP (minority) administration, which came to power after the Scottish parliament elections in 2007.

Research carried out for the End Violence Against Women Coalition found that Scotland is the only area of the UK where the number of Rape Crisis Centres is increasing rather than decreasing (Coy et al, 2008). The number of Rape Crisis Centres in Scotland has increased from eight in 2004 to 12 in 2009, with funding being secured from the Scottish government to establish one further centre in the Scottish Borders. The commitment from the Scottish government to developing a strategic approach to violence against women, and the willingness to develop ring-fenced funding to ensure the provision of services such as Rape Crisis, have been crucial in achieving this (Coy et al, 2007).

Although part of Britain, Scotland has its own criminal justice system, with distinctive systems of prosecution, criminal procedure and sentencing. Scots criminal law is also different in many respects from the law of England and Wales. Following devolution in 1999, the Scottish parliament was (re)established, along with two justice committees and a Cabinet Secretary for Justice. In the early years following devolution, virtually all aspects of criminal justice were subject to scrutiny in the form of consultation and review, resulting in an intense period of policy, legislative and governance changes affecting the provision of many aspects of criminal justice (see Croall, 2006; McIvor and McNeill, 2007; McAra, 2008). Although reform of the criminal justice response to violence against women pre-dated devolution by some time, nevertheless policy and legislative change in relation to Scotland's response to rape accelerated from this point.

Until the passing of the Sexual Offences (Scotland) Act 2009, rape in Scotland was a common law offence, the definition of which – non-consensual penile penetration of a woman's vagina by the accused, with or without emission of semen - was acknowledged as one of the narrowest in Europe. The common law definition excluded oral and anal penetration, or penetration of the vagina by means other than the penis, as well as male rape.

Marital rape was criminalised over a period of several years during the 1980s, culminating in 1989, with reference to various prominent individual cases. Since 1989, a man can be found guilty of raping his wife, even if they were living together at the time of the offence, if it can be proved that the sexual intercourse took place without her consent (Stallard v HM Advocate, High Court of Justiciary, 1989).

It was only in 2001, following an appeal by the then Lord Advocate, that Scots law formally recognised that rape occurs when sexual intercourse takes place without a woman's consent, regardless of whether force is used to overcome her will. In the case of HMA v Edward Watt, the trial judge dismissed the charge of rape, and referred the ruling to the High Court of Justiciary for clarification of the law. This led to the overturning of the requirement that rape should involve the use of force, and effectively redefined the crime of rape. The subsequent Lord Advocates' Reference (No 1 of 2001)¹ clarified that a man commits rape if he has sexual intercourse with a woman without her consent, and that he knew or ‘was reckless to’ the fact that there was no consent. However, this resulted in only partial reform of the law of rape. Subsequent appeal cases showed that it left some aspects of the law less clear than before, and the law was subject to much criticism as a result (see, for example, Chalmers, 2002).

A key shortcoming concerned the lack of definition of ‘consent’ and the difficulties raised by the concept of ‘honest or genuine’ belief in consent on the part of the accused. The concept of ‘honest belief’ has long been recognised as deeply problematic (Brown et al, 1993; Temkin, 2002). Described as a ‘rapist's charter’ because it enables a subjective interpretation to be applied to consent, it allows the accused to maintain that the woman's behaviour amounted to what he believed to be consent – even if that belief was not reasonable. There were concerns about the inherent and significant difficulties faced by the Crown Office and Procurator Fiscal Service (COPFS) in bringing about successful prosecutions for rape, due to the requirement of proving the accused's lack of belief in consent. The issue of subjective interpretation, coupled with the lack of a clear definition of consent (it was up to the jury to decide what interpretation they applied to the case in hand) led to a number of serious problems for women seeking justice in cases of rape and sexual assault. Feminist academics and Rape Crisis Scotland drew attention to the ways in which the lack of clarity around consent led to the use of circumstantial evidence concerning matters such as a woman's clothing, demeanour and lifestyle being brought to bear in the case such that trial proceedings were far more likely to focus on the actions of the complainant than on those of the accused, under no obligation to give evidence himself, while the complainant may be forced to undergo a further ordeal in the form of intrusive cross-examination of a highly personal nature (Jamieson, 2001).

In June 2004, Scotland's First Minister requested the Scottish Law Commission to carry out a comprehensive review of the law of rape and other sexual offences, the terms of which were to ‘examine the law relating to rape and other sexual offences, and the evidential requirements for proving such offences, and to make recommendations for reform’ (Scottish Law Commission, 2006). Following an extensive period of review and wide public consultation during which oral and written evidence was taken from a wide range of stakeholder groups and individuals, the 2009 Sexual Offences (Scotland) Act (hereafter the ‘2009 Act’) received Royal Assent in July 2009. The 2009 Act has drawn together existing common law and statutory sexual offences into a single statutory framework, creating new statutory offences of rape, sexual assault by penetration, sexual assault, sexual coercion, coercing a person to be present during sexual activity, coercing a person to look at an image of sexual activity, communicating indecently, sexual exposure, voyeurism and administering a substance for a sexual purpose. Most notably, the Act has broadened the definition of rape to include penile penetration of the mouth and anus, enabling male rape victims to be recognised for the first time. These changes mean that rape is no longer gender-specific, and so victims can be of either sex, although the retention of a gendered definition of perpetration – penile penetration – is similar to the law in England and Wales and means that only a man can commit rape.

As well as redefining rape, the 2009 Act also introduces, for the first time in Scotland, a statutory definition of consent, as ‘free agreement’. This represents a significant change from the previous position, where a defence of consent required an ‘honest belief’ by the accused regardless of how reasonable that belief may have been. Consent is central to the definition of sexual offence, and the legislation provided much-needed clarity. The Act also identifies a non-exhaustive list of circumstances in which consent can never be present, and makes clear that consent may be withdrawn at any time. Taken together, the widening of the definition of rape, and the statutory clarification of consent, mark radical and wide-ranging changes to the Scottish legal framework for rape and other sexual offences. At the time of writing, it is far too early to tell what the impact of the 2009 Act will be. Certainly, it is envisaged that the placing of the law of rape and sexual offences on a statutory footing will clarify a complex and often confusing area of legislation, and provide Scotland with a modern and robust legal framework. But legislation alone, no matter how enlightened or well intended, is not a sufficient response to rape and other sexual offending.

Since their inception, Rape Crisis Centres in Scotland have played a significant role in raising concerns about the manner in which women are treated when they report a rape or sexual assault to the police. In an oral history publication charting the development of the Rape Crisis movement in Scotland from 1976 to 1991, women were asked about their experiences of the police:

‘… the police, at that time, were appalling in their treatment to women. They asked them if they were on contraceptives, did they have a boyfriend, how much they had to drink that night – they were just up for question, completely…. I remember one particular harrowing thing, and she had her underwear, she'd had the examination, she was sitting with her bag, and she had her pants and everything, and the police sort of picked up her pants, and they were quite frilly, if you like, whatever, and he said “This doesn't look like somebody's not asking for it, to me”. And it was quite intimidating, and her head just went down, and it was just an enormous sense of anger, you know? It really was harrowing.’ (Jane Dorby, quoted in Maitland, 2009, p 111)

In 1983, Chambers and Miller published a highly critical examination of the police investigation of sexual assault cases that drew on the voices of women, many of whom expressed significant concerns about the way they had been treated by the police (Chambers and Millar, 1983). The debate that followed the publication of this research contributed to a shift in policy in the approach to sexual assault investigations in Scotland. Guidelines to chief constables on responding to women alleging rape were published in 1985 (and remained in place until 2004). The first Female and Child Unit, designed to provide a more sympathetic response to sexual offences complainants, was established in Glasgow in 1987 (Burman and Lloyd, 1993; Greenan, 2004). These units – staffed by specialist officers and providing dedicated space for interviewing sexual assault complainants – were set up across Scotland and led to marked improvements in police responses to rape (Christianson and Greenan, 2001). However, there continues to be concern about the response women reporting rape receive from the police. Rape Crisis Centres claim that ‘old-fashioned and insensitive attitudes to rape victims persist’ (Foster, 2006) and there continues to be a lack of access to female forensic medical examiners across Scotland despite significant evidence that most women – and many men – who have experienced sexual assault prefer to be examined by a female doctor (Lovett et al, 2004).

At present, there are eight regionally based police forces in Scotland. Because of a variation in procedures and practice, there is a lack of consistency in how rape is investigated. In most areas, rape and sexual assault are investigated by dedicated specialist units, generally Family Protection Units (established in Scotland between the late 1990s and early 2000s) staffed by officers specially trained in working with those who have been raped or sexually assaulted (known as sexual offences trained officers or sexual offences liaison officers). In other police areas, investigators responsible for interviewing and evidence gathering may have had limited or little specialist training. In 2008, the Association of Chief Police Officers in Scotland (ACPOS) published guidelines on investigating serious sexual crimes that outline standards and good practice and state that the welfare and safety of the victim should take precedence over investigative issues (ACPOS, 2008).

Scotland has an adversarial legal system in which the public prosecution service, COPFS, is responsible for investigating and prosecuting crime. Following a rape report, the police carry out an initial crime investigation and submit a report to the local procurator fiscal (PF). On the basis of the initial police investigation report, the PF makes an initial decision as to whether to move to a formal prosecution process and/or investigate the case further. Following a review of the evidence, the PF reports with recommendations to senior prosecutors (Crown Counsel), who make the final decisions about charging and prosecution. Prosecutorial decisions are based on an evidential and ‘public interest’ test, and in Scots law the evidential test requires corroborative evidence, that is, there must be more than a single evidential source (COPFS, 2006). One of the fundamental rules of Scots law is that the essential elements of the charge must be corroborated before anyone can be prosecuted or convicted. Although the need for corroborated evidence is not peculiar to rape, it does make successful prosecution of such cases more difficult than other crimes. In rape, corroborating evidence is often hard to find. The forensic process attempts to secure evidence to corroborate the woman's version of the events but this is sometimes weak or lacking (Ferguson, 2000). Rape is a crime that is commonly committed in private; there are rarely ‘ear’ orʼ eyeʼ witnesses to corroborate what happened; many of those subjected to rape offer no physical resistance and may not suffer serious physical injury (Du Mont and White, 2007) and may delay reporting, often for significant periods (Clay-Warner and Burt, 2005). As has been well documented, the lack of physical and/or forensic evidence in rape cases means that there is a contestation between the word of the woman (see, for example, Brown et al, 1993; Jordan, 2004) and that of the accused. Despite the removal of the requirement of force in the definition of rape, corroboration difficulties persist.

Victims are the chief witnesses for the prosecution and currently do not have the right to separate legal representation in Scotland. Rape Crisis Scotland has recently begun exploring the feasibility of introducing independent legal representation for sexual offence complainants within the Scottish adversarial system (Raitt, 2009). Rape cases are always prosecuted in the High Court presided over by a judge with a 15-person lay jury. Other serious sexual offences are prosecuted either in the High Court, or the Sheriff Court before a sheriff and a 15-person jury. In addition to a finding of guilt, Scottish jurors have the possibility of finding a case ‘not proven’ as well as ‘not guilty’, both of which result in an acquittal with no possibility of retrial. A decision can be unanimous (all the jury members agree) or by majority (at least eight of the jury agree). The High Court can sentence up to life imprisonment, whereas a Sheriff Court can sentence up to a maximum of five years, but may refer the case to the High Court if it considers that the sentence should be longer.

In 2006, the Scottish Executive provided funding for a three-year pilot Sexual Assault Referral Centre (SARC). In 2007 the first (and currently the only) SARC, known as Archway, opened in Glasgow. Funding for this initiative, totalling £ 1.6 million, was for the period 1 April 2006 to 31 March 2009. The funding was split between ministerial portfolios – justice, communities and health – reflecting the cross-cutting nature of the issue of sexual violence. In November 2008, local funders – NHS Greater Glasgow and Clyde, Strathclyde Police and Glasgow City Council – agreed funding for Archway Glasgow after the trial period.

Archway Glasgow provides forensic medical examinations, sexual health screening, follow-up support and counselling to victims of recent serious sexual assault. Recent assault is defined as an assault that has occurred within the last seven days. The service is for adults and adolescents aged 13 and above. Service users are guaranteed access to a female doctor – the forensic aspect of the service is staffed exclusively by specialist sexual offence examiners, who are all female. The service is provided 24 hours a day, seven days a week, with access outside of office hours being provided through an on-call service. However, SARC facilities are only currently available in one region in Scotland. Archway Glasgow is currently being externally evaluated, and the evaluation report is imminent. It is not yet clear what steps, if any, the Scottish government will take to encourage the development of similar services across the rest of Scotland.

The ordeal of giving evidence in the witness box is one of a set of ongoing and inter-related concerns about the criminal justice response to rape. The 2004 Vulnerable Witnesses (Scotland) Act introduced several procedural changes, including the introduction of special measures (for example, screens, supporter, a live television link from either another room within the court building or from outside the court in a remote site, evidence by a commissioner and use of a prior statement) to assist child witnesses and those defined as vulnerable adult witnesses in giving their evidence in all cases, including sexual offences cases, although there is as yet no clear evidence that the introduction of these measures has made a material difference to the ordeal of giving evidence in rape trials (Richards et al, 2008).

Much of the concern about women's experience of giving evidence in court relates to the use of questioning and evidence about her sexual history and sexual character, and this has been a concern in Scotland for some time (see, for example, Chambers and Millar, 1986; Brown et al, 1993; Jamieson, 2001). Indeed, Scotland has made two legislative attempts at restricting the use of sexual evidence, although both are seen as limited in effectiveness (Brown et al, 1993; Burman et al, 2005, 2007). Scotland first enacted rape shield legislation in 1986², which placed restrictions on the use of sexual history and sexual character evidence of complainants in trials for a wide range of sexual offences. As in other jurisdictions, the prosecution (known as the Crown in Scotland) was exempt from these restrictions. Applications to introduce restricted evidence were made verbally by the defence during the course of the trial (usually after the complainant's examination in chief).

Yet research found that despite the shield legislation, restricted evidence was still being introduced in the Scottish courts (Brown et al, 1992, 1993; Burman et al, 2005). Key problems were that there was no consideration by the court of the relevance of the evidence sought to the charges libelled and the guilt of the accused, and opposition from the prosecution to the introduction of the evidence or questioning was very rare (Burman et al, 2005, 2007).

Throughout the 1990s, there was growing disquiet with the criminal justice response to rape. Against a background of criticism of the conviction rate compared with the number of complaints made to the police, the treatment of complainants in sexual offence trials became an increasing cause for concern. Critical attention focused on the perceived inadequacy of the existing legislation, in particular in relation to the relevance and admissibility of sexual history and sexual character evidence.

In November 2000, the Scottish Executive issued a pre-legislative consultation document entitled Redressing the Balance: Cross-Examination in Rape and Sexual Offence Trials (Scottish Executive, 2000b) seeking views on proposals to change the law of evidence in sexual offence trials in order to:

The proposals sparked controversy because the legal profession and the judiciary thought the existing system largely satisfactory, and saw no need for reform. This was in stark contrast to Rape Crisis Centres and other support groups, as well as legal academics who had been campaigning for reform for some time.

The first proposal addressed concerns about accused persons seeking to personally cross-examine the complainant. It aimed to prevent complainants from being humiliated, embarrassed, intimidated or inhibited in giving their evidence as a result of having to be questioned by the accused. The second proposal, to widen and strengthen the existing restrictions on sexual history and character evidence, and to sharpen the focus on relevance, were a clear attempt to address the perceived deficiencies of the earlier legislation (Jamieson and Burman, 2001).

Following a lengthy consultation, the Scottish parliament published the Sexual Offences (Procedure and Evidence) (Scotland) Bill in June 2001, which proposed the strengthening of the existing prohibitions and exceptions (s 274 and s 275). The 2002 Sexual Offences (Procedure and Evidence) (Scotland) Act followed, replacing the earlier legislation, which had been in operation for the previous 16 years, and introducing entirely new evidential and procedural provisions. As well as preventing the accused from personally cross-examining the complainant, the use of sexual history and general character are both restricted, and the Act requires that closer attention is paid to the relevance of any evidence or questioning sought to be introduced. Further, it requires that decisions about allowing such evidence must include taking account of a complainant's dignity and privacy. Uniquely, the prohibition now applies to the Crown as well as the defence, and both are required to make a written application in order to introduce the evidence, in advance of the trial. Written applications must state the nature and relevance of proposed questioning, and the inferences that the court should draw from it. The court is also required to set out the reasons for its decisions. Also, where a defence application is allowed, the Crown is required to disclose any previous analogous convictions that the accused may have. The policy intention here is that the threat of previous convictions being disclosed would deter the defence from seeking to attack the character of the complainant (Scottish Executive, 2000b, p 10). The accused is also required to give prior written notice if his defence is to include a plea of consent.

Yet research commissioned to monitor the use of the legislation found that the volume of sexual history and character evidence introduced in sexual offence trials has substantially increased (Burman et al, 2007). Whereas, under the 1995 Act, just over a fifth (21%) of trials involved an application to introduce prohibited evidence (Burman et al, 2005), applications are now made in almost three quarters (72%) of sexual offence trials heard in the High Court – a three-and-a-half-fold increase (Burman et al, 2007; Burman, 2009). Moreover, applications are almost always successful in that the evidence sought is either fully or partially allowed. The high success rate is similar to the situation in England and Wales (Kelly et al, 2006). It is also important to note that, although applications to introduce sexual history and character evidence are made in most trials, prohibited evidence also continues to be introduced in the absence of any application. The research found that most applications sought to introduce more than one type of questioning or evidence and, in most cases, all of the evidence cited in applications is pursued during the trial, resulting in lengthy cross-examinations (Burman et al, 2007).

Given the significant increase in numbers of applications, and their very high rate of success, as well as the continued introduction of prohibited evidence in the absence of any application, there has been a substantial increase in the amount of sexual history and character evidence elicited and admitted. Moreover, the proportion of cases involving multiple applications directed at the same complainant has more than doubled, with successive applications made both pre-trial and at the trial itself, such that seven out of 10 complainants in serious sexual offence trials are now virtually guaranteed to be questioned on intimate sexual matters (Burman et al, 2007). Submission of an application to introduce sexual history and/or character evidence is now a routine aspect of defence case preparation. The requirement that the application be made in advance and in writing has combined with other changes in procedure, including a greater emphasis on early preparation of cases; more extensive and earlier disclosure by the prosecution of material and evidence that may be pertinent to the decision of whether or not to lodge an application; and the effect of influential appeal court decisions on cases that have involved applications to heighten early consideration of the possibility of an application (Burman, 2009). Despite well-intentioned reform, legal practice can weaken reform intent such that the criminal justice system continues to fail to provide women with the support, safety and justice they need, and the court room remains a site of secondary victimisation.

Although the criminal justice response to rape is an area characterised by change and reform, the rate of convictions for rape and other sexual offences remains very low, and women continue to feel that they are not being taken seriously when they report rape (Maitland, 2009). Over the 30-year period from 1977 to 2007, Scottish official recorded crime data show that there was an increase of 451% in the number of rapes reported to the police (Scottish Government, 2009a). In marked contrast to reporting, however, there has been virtually no change in the number of prosecutions for rape over the same period. The number of prosecutions grew by just 15% (from 60 to 69), representing a fall in the proportion of reported cases prosecuted from 34% in 1977 to 7% in 2006. What is more, conviction rates have actually decreased over the same period in a manner not dissimilar to England and Wales. Using the national statistical data, Scotland currently has the lowest conviction rate for rape in Europe, at under 4% (Burman et al, 2009; Lovett and Kelly, 2009).

In a European study of attrition of rape cases, which involved the tracking of 100 rape cases from point of report to the police, and which sought to explore in detail the factors involved in attrition and the points at which it occurs (Lovett and Kelly, 2009), it was found that the Scottish arrest and custody rates were the highest of all countries in the study (Lovett and Kelly, 2009), and almost six in 10 suspects (59%) were charged. Attrition in Scottish cases takes place across the legal process, albeit much more of the decision making takes place at a relatively late stage (often just before court) and is made by prosecutors (Lovett and Kelly, 2009). The study identified a conviction rate of 1 %, which is mid-range for the study, but considerably higher than that indicated by the national official statistics (3% in 2006 and 5% in 2004–05) (Lovett and Kelly, 2009).

In October 2004, the (then) Solicitor General, Elish Angiolini QC, instructed a wide-ranging review of the investigation and prosecution of rape and serious sexual offences. ACPOS subsequently announced that it would be undertaking a parallel review of its own procedures.

While no report has been made public, ACPOS has released the key recommendations from the review, relating to a variety of aspects of the investigation process, including the updating of the guidance manual for police officers on the investigation of sexual assault; the establishment of a Scotland wide ‘Moorov database’ (to assist in the gathering of intelligence of cases that are similar enough to have the potential of corroborating each other); and agreeing a standard reporting protocol with COPFS. The review also recommended the commission of a study of closed rape cases categorised as ‘insufficient evidence’, ‘dubious crimes’ and ‘false allegations’ to establish where and how the attrition rate could be improved, along with a review of the current structure and remit of specialist units across Scotland to identify the best approach. The recommendations also identified the need to develop a national training course for officers investigating sexual assault.

An ACPOS Sexual Crime Working Group was established to take forward the recommendations. A national training programme on the investigation of sexual assault has now been developed, to which Rape Crisis Scotland and local Rape Crisis Centres contribute. ACPOS has also developed a training DVD for those who might provide a first response to someone reporting a sexual crime, and published the Scottish Investigators' Guide to Serious Sexual Offences (ACPOS, 2008), which, as well as providing detailed guidance on interviewing planning and forensic issues, attempts to dispel myths around how someone who has been raped may react.

Far more is known about the COPFS review of the investigation and prosecution of sexual offence cases in Scotland. COPFS established an advisory group for the review, comprised of a range of representatives from statutory and voluntary organisations, including Rape Crisis Scotland, the Women's Support Project, Scottish Women's Aid, Victim Support and two lesbian, gay, bisexual and transgender organisations. The COPFS report made 50 recommendations for change, which by June 2009 had been implemented in full (COPFS, 2006). These include the production of comprehensive guidance for those investigating and prosecuting serious sexual offences; the development of a comprehensive system of specialised sexual offences training within COPFS, and a system of certification for all COPFS staff working with sexual offences; the establishment of a Standing Group on Forensic and Medical Evidence to represent the interests of the police, COPFS and medical and forensic practitioners and to permit communication about policy and practice around advances in medical and forensic evidence; the establishment of a working group to examine the merits of the use of expert evidence; the publication of a comprehensive information pack for those who have been raped or sexually assaulted (Scottish Government, 2008a); and the provision of better information to the complainants throughout the prosecution process, including advising complainants of any defence application to lead sexual history or character evidence, and notifying them of the outcome of any such applications. With these developments, COPFS has introduced radical changes to the way rape and other sexual offences are prosecuted in Scotland, with a shift towards specialisation in the prosecution of sexual crime. In June 2009, the creation of a new specialist National Sexual Crimes Unit was announced, comprised of Crown Counsel (QCs) with a remit for close involvement in the investigation and prosecution of sexual crimes. Comments from the head of the new unit in a national tabloid on the day of the announcement provide some encouragement as to the approach likely to be taken by the unit:

‘We will not let difficult cases go. We will investigate until we are sure it is right to give up. We will treat a rape the way we would approach a murder, looking at the whole picture. Does that picture present a story of consent or lack of consent …. If you are a rapist picking on a woman, are you going to pick a woman who is alert or will you hang around a nightclub and spot the woman is stumbling about, who is drunk? It's not just putting that suggestion in the jury speech but also looking at CCTV evidence, tracing the taxi driver who picked up an accused and complainant, finding the barman and asking how much she drank. What weight is she? What height? What impact will alcohol have on her?’ (Head of National Sexual Crimes Unit, quoted in Brown, 2009)

While there is little doubt that criminal justice bodies in Scotland have continued to make advances at the strategic policy level and at the legislative level, there remains a worrying gap in terms of the effective implementation of policy into practice. The provision of special measures, interpretation and support for women during the court process is inconsistent (Burman et al, 2007).

Recent studies in England and Wales have shown that a significant minority of the population blames women for rape in certain circumstances (see, for example, ICM, 2005). Scotland is not dissimilar, in terms of the prevalence of unenlightened social attitudes about sexual assault and those who experience it. Women who allege sexual assault continue to be regarded as culpable for their sexual victimisation (TNS System 3, 2007). Recent research undertaken for the Scottish government found that 27% of respondents thought a woman can be at least partly responsible if she is drunk at the time of a sexual assault; 27% thought that a woman bore responsibility if she wore revealing clothing; 32% said that there should be some burden of responsibility for rape if the women is flirting; and 18% believed that rape can be the woman's fault if she is known to have had several sexual partners (TNS System 3, 2007).

Rape Crisis Scotland has major concerns about the impact that problematic attitudes towards women who have been raped may have on the criminal justice system. The need for improved public awareness of the nature and reality of sexual offences was identified as a key issue in the COPFS review of the investigation and prosecution of rape and serious sexual offences:

The high attrition in such cases can be tackled effectively only by concerted efforts throughout the criminal justice system and the wider community in Scotland to raise public awareness and understanding of the nature of sexual offending and its impact upon victims. (COPFS, 2006)

The potentially prejudicial impact of societal attitudes towards rape on the ability of women to access justice has also been recognised within COPFS, and the Lord Advocate has been outspoken on the need to change outdated attitudes to rape if reform of the law is to be successful.

In 2007, Rape Crisis Scotland received funding from the Scottish government to develop and test a public awareness campaign on rape. The campaign was based on one that ran in America in the 1990s called This is Not an Invitation to Rape Me, which featured a series of images of women in scenarios where they might commonly be blamed for rape. The central purpose of the campaign was to challenge women-blaming attitudes to rape by stimulating public debate. The campaign confronts directly the following myths about women and rape:

The Rape Crisis Scotland campaign was launched in October 2008, and took the form of a poster campaign displayed on billboards and bus stops across Scotland, as well as adverts in local newspapers. The campaign also has a dedicated interactive website³, which contains over a thousand comments on the campaign, suggesting that the campaign objective of creating discussion has been successful. An external evaluation of the campaign (Progressive, 2009) found that it had been successful in generating public discussion on rape, with 98% of people interviewed agreeing that the campaign tackled an important issue, 65% stating that it would encourage them to talk about the subject with their friends and family and 61% saying that it would make them consider their own attitudes towards rape (Progressive, 2009).

Organisations such as Rape Crisis Scotland have welcomed the recent developments in how rape is investigated and prosecuted in Scotland. What remains to be seen is what difference it will make to women's experiences of the justice system, and ultimately to the appalling conviction rate for rape in Scotland. Early indications are positive – in June 2009, figures released by the Scottish government showed that rape convictions as a proportion of recorded rape had increased, from 2.9% to 3.7%. The figures are still very low and the increase slight. However, on an optimistic reading it could be a sign that recent initiatives are starting to have an impact. Until conviction rates are available for future years, it is impossible to know whether or not the recent increase is a statistical blip, or a sign of a real and sustained improvement to how the Scottish justice system responds to complaints of rape.

Despite significant developments in recent years, questions remain as to how effectively rape can be prosecuted within an adversarial legal system without unacceptable trauma being caused to the complainant. As previously stated, COPFS prosecutes in the ‘public interest’, which cannot necessarily be assumed to always coincide with the complainant's interest. The potential conflict inherent within COPFS's role is particularly apparent in relation to the issue of sexual history evidence, and use of complainants' medical records. The passivity of the prosecution's response to defence applications to introduce sexual history and character evidence has already been noted. This experience makes it difficult to feel confident that a robust approach will be taken to complainant's privacy rights in respect of their medical records. In a recent briefing commissioned by Rape Crisis Scotland on the issue of disclosure of medical records, the concern was articulated that:

The Crown may well have an irreconcilable conflict between serving the public interest and representing the complainer's quite proper desire for non-disclosure. They cannot both serve the public interest and adequately shield the complainer from disclosure applications. There are too many conflicts of interest involved. (Raitt, 2009)

This concern has led to Rape Crisis Scotland actively campaigning for the introduction of independent legal representation for complainants of sexual offences. This is a right that complainants of sexual offences have been granted – to varying degrees – in other countries both across Europe and in Canada. It is a development that may give Scottish complainants the sense that there is someone in the criminal justice system directly representing their interests.