The Abusive Behaviour and Sexual Harm (Scotland) Bill was passed unanimously by MSPs earlier this week in a bid to help reform the way that sexual offences are prosecuted within criminal courts. Among the new provisions are a 'domestic abuse aggravator' designed to ensure that courts take into account the circumstances surrounding domestic abuse when working out sentences, as well as a new offence for what is commonly known as 'revenge porn'—disclosing or threatening to disclose intimate or sexually explicit images of a person without their consent.
Most notable among the features of the Bill is a change to the statutory directions given to jurors in cases relating to rape and other sexual offences. Under the new law, judges will be permitted to address the fact that some jurors hold significant misconceptions about the nature of sexual offences, what causes or motivates them, how they occur and how survivors 'should' behave or react after an offence has been committed. According to Justice Secretary Michael Matheson, many individuals 'quite wrongly assume' that sexual attackers will always use physical force, that their victims will always resist or 'fight back', and that police are usually contacted immediately after a crime has been committed—and, by default, that the absence of any of these features from the case evidence may call into question the veracity of a victim's claims.
Under the new laws, judges will be permitted to direct juries about the common misconceptions surrounding sexual attackers and their victims. However, the move has been labeled 'controversial' by some within the Scottish Parliament. Conservative justice spokeswoman Margaret Mitchell has suggested that Parliament is overreaching its hand into the court system with the new provision.
'Provisions for statutory jury direction compromise the independence of the judiciary, which is a central tenet of Scots law,' she argued. 'They blur the constitutional divide between legislators and the judiciary, they strike at the separation of powers and they raise constitutional issues which compromise democracy in Scotland.'
Sources: Scotsman; Daily Record
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