Rape In Scots Law

This essay aims to outline the development of the definition of rape in Scots Law. First we will briefly look at how Roman Law regards rape, then proceed to consider the opinions of the institutional writings of Hume, Burnett and Alison. Following on from this we will explore how case law in the 19th and 20th century further developed defining rape. Continuing we will consider why the definition of rape required to be reviewed, leading to reforming the offence from common law to statutory legislation and finally drawing together concluding remarks.
In Roman Law crimen raptus, the crime of rape required abduction, sexual violation was not necessary. Rape was a Plea of the Crown and therefore a capital offence punishable by death. If there
HM Advocate , the charges were rape and assault with intent to ravish. Fraser having intercourse with the complainer by deceiving her that he was her husband. Fraser objected to the charges, due to the absence of force and that the complainer did not refuse to consent. The court agreed and the objection was sustained because of the absence of force. Lord Cockburn stated that consent, was actually given, albeit mistakenly and only withdrawn after the act, when the deceit was apparent. In Sweenie v. HM Advocate Lord Abdmillan’s opinion stated that force is an essential element in the crime of rape. He also stated that it must be force employed to overcome will. Lord Cowan concurs stating the act must have been perpetrated forcibly. The charge of rape was dropped due to the absence of force. Both Fraser and Sweenie set the precedents with regards to needing force and actual refusal of consent for the charge of rape. HM Advocate v. Grainger regards consent. The accused claimed the crime cannot be committed unless a woman is in a condition, physically and mentally, to exercise her willpower and offer resistance. The complainer was highly intoxicated and unable to give or refuse consent. Lord Anderson stated this contention seems to me to be well founded and on that basis the charge of rape was dropped. Barbour v. HM Advocate the complainer did not offer any physical resistance; normally this was a requirement that showed the accused overcame the will
HM Advocate that force and violence constitutes an essential element of the crime. Concerned that the current common law definition may not be adequate to meet today's needs, the Lord Advocate asked the Court of Criminal Appeal to review the definition. Seven Judges carefully reviewed the legal opinions in Sweenie, on 22 March 2002 the Lord Advocate’s Reference (No1 of 2001) overruled Sweenie and gave opinion that it was not a requirement that the man forcibly overcame the will of the woman. This changed the actus reus of rape from “a man having sexual intercourse by force and against the will of the victim” to “sexual intercourse with a woman without her consent”. In December 2007 the Scottish Law Commission issued a report on rape and other sexual offences. Based on this report the law of rape was reformed and changed from common law to statutory legislation with the Sexual Offences (Scotland) Act