Domestic and sexual abuse Bill passes its first stage at Holyrood

Legislation aimed at addressing the “unenlightened and ill-founded” attitudes of some jurors in sexual offence trials has passed its first stage at Holyrood.

The Scottish Government’s Abusive Behaviour and Sexual Harm Bill includes a requirement for judges to give juries specific directions when dealing with sexual offence cases, specifically why a victim might not report or resist an offence at the time it was committed.

It will also create an offence of sharing private intimate images without consent – often called revenge porn – with a maximum penalty of five years’ imprisonment, and a new statutory domestic abuse aggravator will also be introduced to ensure courts take domestic abuse into account when sentencing an offender.

Addressing the jury directions, Justice Secretary Michael Matheson (pictured) said: “The Scottish Government included these provisions in the Bill to deal with the unfortunate fact that some members of a jury will take with them into the jury room preconceived and ill-founded attitudes as to how sexual offences are likely to be committed, and how someone subject to a sexual offence will likely react.

“It is the case that some members of the public continue to think that someone carrying out a sexual offence will almost always require to use physical force, that the person subject to the sexual offence will almost always offer physical resistance, and a report to the police by the victim about the sexual offence will almost always be made immediately.

“Where people hold these views, it is unfortunate that they can allow such unenlightened views to cloud how they assess the evidence in a case.”

Judges and lawyers have spoken out against the introduction of the statutory jury directions, stating that ill-founded preconceptions about sexual offences should be addressed through evidence and discretionary directions.

Scottish Labour’s Elaine Murray backed the measure contained in the Bill.

She said: “Juries are made up of ordinary people. We do not need to undertake a lot of jury research to know that the general public hold misconceptions about sexual offences.

“Unfortunately a lot of people still think that a woman’s behaviour can contribute to the offence committed against her.”

Referring to a lack of physical resistance and immediate reporting, she added: “If evidence on those matters is part of a trial, then the judge should remind the jury that it does not constitute consent.”

Tory justice spokeswoman Margaret Mitchell described the Bill as a “hugely important piece of legislation which seeks to address hugely vexing, emotive, and in some cases complex, issues”.

While she backed the general principles, she said a lot of work still needed to be done to make it “fit for purpose”.

The Conservative MSP argued “at the very least more research must be carried out” before changes are made to the directions given to juries considering sexual offences.

Ms Mitchell added this could set “a dangerous and unwelcome precedent by eroding the judiciary’s discretion”.

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