The long-awaited Sexual Offences (Scotland) Act, which was passed by MSPs in June, will not be implemented until late next year, the Sunday Herald has learned.
The new law, which was hailed as a “landmark” by justice secretary Kenny MacAskill, was the result of years of consultation and research by legal experts, the government and prosecutors.
Lord Advocate Elish Angiolini, left, has also long campaigned for an improvement in the conviction rate for sexual offences in Scotland.
The new law broadens the definition of rape, set down the first statutory definition of consent, and created new offences covering sexual coercion and the sexual abuse of vulnerable adults and children. It also criminalised indecent emails and texts, and spiking people’s drinks to abuse them. However, although the act received Royal Assent in July, Scottish ministers do not expect to put it into effect for another year. The final stage will involve laying “commencement orders” in the Scottish Parliament -- minor pieces of legislation which specify when laws come into effect. Until then, the reforms remain in limbo.
A government spokesman said the delay was needed to train police, court and Crown Office staff, but opposition MSPs criticised MacAskill for not getting the law working as soon as possible.
Last week two men walked free from the High Court in Dunfermline after the collapse of a paedophile trial when the alleged victim’s mother changed her evidence. Neil Kendall and Ian Davidson, both from Edinburgh, had been accused of raping 29-year-old Dana Fowley when she was a child.
Fowley’s mother, Caroline Dunsmore, had previously told the court she watched television while her daughter was gang-raped at a Perthshire caravan park in mid-1990. However, she later said she had been “mistaken”, prompting the Crown Office to drop the case.
Dunsmore is currently serving a 12-year sentence for abusing her daughter.
The case highlighted Scotland’s poor conviction rate for rape, which is the lowest in Europe. In 2007-08, only 88 of the 908 rapes reported to the police ever reached court, and just 33 (3.7%) resulted in a conviction.
When the new law was passed by MSPs on June 10, Mr MacAskill described it as a “clear, modern and robust legal framework ... to ensure that victims are protected and offenders punished”. He added: “I regard the bill as a landmark that is worthy to mark the 10th anniversary of devolution.”
Bill Aitken, the Conservatives’ justice spokesman, said: “I find this astonishing. The justice committee spent a long time and considerable effort to assist the victims of sexual assault. I’m disappointed there is to be this quite unnecessary delay. The preparation should have been in hand a year ago.”
Psychologist Dr Mairead Tagg, Scotland’s only expert court witness on the abuse of women and children and a worker with Glasgow East Women’s Aid, said: “There have been so many people failed by the system, how can it be anything but a priority to bring justice and safety to our communities and
hold perpetrators of rape and sexual assault accountable for their crimes?”
Solicitor-advocate John Scott said he was “surprised” by the timing. “Legislation like that obviously demands proper training to back it up, but a year is a long time. Parts could be prioritised.”
The late timescale is at odds with recent government statements. In August, when wide variations in prosecution rates across Scotland emerged, the act was cited in defence.
Ministers also said this month the act was part of efforts to protect Scots. The Programme For Scotland 2009-2010, published on September 3, listed “implementing the Sexual Offences (Scotland) Act” among efforts to make communities safer and stronger. It will now not be implemented until 2010-11.
A Scottish Government spokesman said: “The act is expected to come into force later next year. We are working to ensure that the police, Crown Office and Scottish Court Service staff are fully trained when the act is implemented and the necessary systems are in place.”
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