Redefining rape: The Scottish approach

• Jurisdiction: South Africa
• Pages: 58-69
• Published date: 24 May 2019
• Date: 24 May 2019
• Author: Christopher Gane

Redefining rape:

the Scottish approach

CHRISTOPHER GANE*

Introduction

The definition of rape is a difficult and sensitive issue, which has been the

subject of detailed and anxious consideration in a number of Commonwealth

jurisdictions, including South Africa.

1

There has been no such consideration

of the law in Scotland, where the tradition has been to rely heavily on judicial

decisions to bring about important changes in the substantive criminal law.

Two major developments in the law of rape have been effected in this way.

In the case of

Jamieson v H M Advocate

2

the High Court of Justiciary, sitting

as the court of criminal appeal,

3

adopted the highly controversial rule of

English law that an honest, albeit unreasonable, belief in consent excluded

guilt in a case of rape. More recently, the appeal court has held, in

Lord

Advocate's Reference (No 1 of 2001)

4

that the actus reus of rape, which has

traditionally been defined in terms of forcible sexual intercourse, should now

be defined in terms of sexual intercourse without the complainer's consent.

This article offers an appraisal of this development.

5

LLB,

Professor of Scots Law, University of Aberdeen.

1

See, for examples, Criminal Law Revision Committee,

Fifteenth Report: Sexual Offences,

Cmnd. 9213 (1984) (England and Wales); Home Office,

Setting the Boundaries: Reforming the

law on sex offences

(2000) (England and Wales); Criminal Law Reform Committee,

Report: The

Decision in DPP v Morgan: Aspects of the Law of Rape

(1980) (New Zealand); Law Reform

Committee of South Australia,

Report— Rape and other Sexual Offences

(1976); Law Reform

Commission of Tasmania,

Rape and Sexual Offences— Report and Recommendations

(1982);

Irish Law Reform Commission,

Report on Rape and Allied Offences

(1988); South African Law

Commission, Project 107, Sexual Offences, Discussion Paper 85,

Sexual Offences: The

Substantive Law

(1999) and the Commission's

Report

of December 2002.

2

1994 SLT 537.

3

Hereafter, unless otherwise indicated, the appeal court'.

4

2002 SLT 466; 2002 SCCR 435. The procedure for a Lord Advocate's reference is set out in

s 123 of the Criminal Procedure (Scotland) Act 1995. That section provides that where a

person tried on indictment is acquitted or convicted of a charge, the Lord Advocate may refer

a point of law which has arisen in relation to that charge to the High Court for their opinion.

The opinion of the court on a point referred to it under this procedure does not affect the

acquittal or conviction in the original trial. Cf Section 319 South African Criminal Procedure Act

51 of 1977.

5

The opinion of the Lord Justice-General (Cullen) contains a number of observations on the

case of

Jamieson v H M Advocate,

all of which are obiter, and some of which suggest that

Jamieson

may on some future occasion be re-considered. Consideration of that aspect of the

law of rape is outside the scope of this article.

58

(2003) 16 SACJ 58

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