Chamber and committees

Petitioner submission of 3 October 2021

PE1876/K: Accurately record the sex of people charged or convicted of rape or attempted rape

The response states that it is “for Police Scotland to determine how the sex of people charged or convicted of rape or attempted rape is recorded on the CHS”. Our petition asks that the Scottish Government require Police Scotland to do so. Crime recording practices in Scotland are overseen by the Scottish Crime Recording Board whose role it is to “support the production of accurate and objective statistics on crime in Scotland”. The Board is chaired by the Scottish Government.

The Scottish Government response states that “all people convicted of rape or attempted rape in 2019/20 were recorded as male” and notes an error in the 2018/19 statistics, which show a female convicted of rape.

The response also cites a Police Scotland Freedom of Information response which states that in the 28 cases where a female was recorded as a “suspect/accused for the crime of rape” between 2016 and 2020, in each instance “their involvement was art and part” (aiding and abetting). Whilst the Scottish Government does not take a clear view, in citing these sources it is implied that no change is needed on the basis that there is no evidence of a problem. We think this assumption is contestable on the following grounds.

Reliance on inaccessible data

The Scottish Government response is not supported by publicly accessible data. The analysis in the Police Scotland FOI response was only made possible by Police Scotland choosing to waive the £600 FOI limit, due to “public interest” and examining restricted records. The response confirms that each of the 28 cases involved art and part but does not clarify the sex of the persons involved, stating “our crime management systems do not record the information requested.”

Corrections policy

In the 2018/19 ‘Criminal Justice Proceedings in Scotland’ bulletin, the Scottish Government introduced new explanatory text that states “During production of this bulletin we query any unusual sex values with Police Scotland, SCTS, and COPFS. Unusual values may be… where a female has been proceeded against for rape and attempted rape. We fix any values that were erroneous with the correct values” (D5). To the best of our knowledge the error noted in 2018/19 was only queried when raised by us. That the Scottish Government seeks to “fix” such data strongly suggests that it believes it is inaccurate to record a male-bodied person as female in these cases.

We are surprised that the Scottish Government feels that reliance on a) ad hoc data interrogation of data that is not in the public domain; and b) corrections to data that it views as inaccurate is a robust or sustainable approach to data collection. Nor does the Scottish Government response address the significant question of trust in public institutions and official statistics arising from this issue.

Failure to future-proof

The Scottish Government response makes no comment on prospective risks to data integrity. The submission by Professor Sullivan shows these risks are not hypothetical. In England and Wales, the Crown Prosecution Service has stated that it is unable to confirm the sex of the 436 individuals accused of rape between 2012 and 2018 who were recorded as women, because this would entail manually examining every case file.

We note also that a case was reported [https://www.dailyrecord.co.uk/news/scottish-news/sex-gender-change-pomont-9141800] in the Scottish press, where a man charged and later convicted of rape was temporarily treated as a woman on the basis of self-declaration, whilst in held in remand in Polmont Young Offenders Institution.

Guidance on recording sex

Recent Scottish Government guidance on collecting data on sex, gender identity and trans status cites the “investigation of serious sexual offences” as an example where data on biological sex is required. That the Chief Statistician chose to single out sexual offending in guidance that otherwise favours the conflation of sex and gender identity in data collection, lends weight to the argument that the nature and gravity of such cases justifies accurate recording.

Recent guidance prepared by the UK Statistics Authority ‘Inclusive Data Taskforce’ recommends that data on sex is routinely collected and reported, that measures should be ‘conceptually robust’ and that data producers clearly distinguish “between concepts such as sex, gender and gender identity”. The conflation of sex and gender identity as per Scottish crime recording practices does not meet this criterion.

Moral imperative

We believe that there is a strong moral imperative from the perspective of respect for victims to record sex accurately in cases of rape and attempted rape. Criminal Justice statistics paint an aggregate picture but are comprised of individual incidents that reflect people’s lives and experiences. We are dismayed that the Scottish Government appears to wish only to record data reflecting the perspectives of those charged with rape or attempted rape and ask the Committee to reflect on the message that this delivers to victims of sexual offending.