Chamber and committees

Submission from Lesley Warrender of 27 October 2021

PE1876/Q - Accurately record the sex of people charged or convicted of rape or attempted rape.

I am a private citizen and wish to share my views on and support for the above petition.  I am also a retired police officer, having retired from the Scottish police service in 2010.  For the last 7 years of my service, I was seconded to HM Inspectorate of Constabulary (E&W), during which time I had specific responsibility for rape and serious sexual offences.  

In 2007, I was co-author of a report, ‘Without Consent’, published following a review of the investigation and prosecution of rape offences carried out jointly with HM Crown Prosecution Service Inspectorate.  Although now 14 years old, many of the issues raised at the time continue to be raised and remain relevant today.  

One of these in particular, attrition - the process whereby cases ‘drop out’ of the criminal justice system - continues to be highlighted in the media each year when the annual crime statistics are published.  As you will be aware, in Scotland, for the year 2019/20, of 2343 crimes of rape and attempted rape reported to the police, 130 resulted in a conviction - 5.5%.  This, however, reflects an ongoing pattern - in the last ten years, of 18,287 crimes of rape and attempted rape reported to the police in Scotland, 960 ended in a conviction - 5.2%.  

This is attrition.  And this is the reality that every victim faces when deciding whether to take the first step towards justice and report the crime to the police.  If they do, there are further barriers to be overcome at each stage of the criminal justice process.  These are well-documented and it is little wonder that an estimated 85% of victims choose not to report.  

The last thing victims now need is a further barrier to reporting.  

As already pointed out in the petition submissions, how physical sex is recorded matters, not only in terms of data credibility, but in the way it could impact on victims through its effect on the language used to describe the perpetrator.  Only someone with a penis can commit the crimes of rape and attempted rape, someone who is physically male.  I can only imagine the impact on victims, especially vulnerable victims such as children or the elderly and frail, of having to refer to the perpetrator, or of hearing or seeing the perpetrator referred to, as anything other than ‘he’.  

Whilst all of those convicted of rape in 2019/20 in Scotland were recorded as male, and the number of future cases where this may become an issue is likely to be small, unless police recording practice for, at the very least, rape and attempted rape changes, this will become yet another reality that every victim will face in considering whether or not to report to the police.

Attrition in crimes of rape begins early and continues throughout the whole criminal justice process.  Time and again, research and reviews highlight the importance of the victim’s experience in securing a conviction and positive criminal justice outcome.  This is also recognised in the Victims and Witnesses (Scotland) Act 2014, which places an obligation on a number of people and institutions, including the Chief Constable of the Police Service in Scotland, in relation to victims of crime.  Not least are having their needs taken into consideration, sensitive and respectful treatment and having protection from secondary and repeat victimisation.

‘Without Consent’ concluded as follows:

Victims of rape remain at the heart of this process.  In no other crime is the victim subject to so much scrutiny during an investigation and at trial; nor is the potential for victims to be re-traumatised during these processes so high in any other crime.  It should not be surprising, therefore, that so many choose not to report or not to continue with the process.  Maintaining victim confidence in the criminal justice process, however, is absolutely key if offenders are to be brought to justice.

If victims truly are at the heart of the criminal justice process, then their perspective also needs to lie at the heart of considerations which affect them.