You’re a rapist if you screw your sleeping or sozzled wife in the land of the kilt

April 26, 2019

 

Rape is a vile and sordid crime, and the details more sordid still (if you feel squeamish don’t read further). But this hasn’t stopped well-meaning progressives in Scotland, in their desperate quest for politically-correct feminist orthodoxy, from making fools of themselves and – courtesy of a decision of the Scottish Appeal Court produced last year but only reported a few days ago – rapists of a sizeable proportion of Scotsmen.

 

Let me explain. In 2009 the oh-so-woke SNP Scottish government decided on an up-to-date definition of rape, free from the encrusted detritus of the patriarchy. Having done this, they put it into the Sexual Offences (Scotland) Act 2009. It can best be summed up as “if in doubt it’s rape.” 

 

Putting matters as delicately as possible, the new law says rape is penetration, so long as it continues, to which there is no free consent or reasonable belief on free consent. It then says that as a matter of law consent cannot be given by a person who is drunk, incapable or asleep, and can be withdrawn at any time; and that consent to one act does not mean consent to anything else.

 

The problem is not difficult to spot. Imagine a long-standing and loving couple in bed: as often happens, she wakes up in the middle of the night with him (again putting matters delicately) inside her, and thereafter both take pleasure in the whole event.

If you want to have sex with your wife you must always thoroughly wake her up first.

This, or something like it, was the background to the Scottish appeal in question. But there was one change: she later made a complaint of rape. And from then on things moved inexorably. He was charged and hauled up before the High Court. He gave his story about his partner’s and his normal practices, and said that because of this she must have implicitly consented before drifting off to sleep.

 

The judge, however, disagreed, as did the Appeal Court. Consent as a matter of law had to be absolutely contemporaneous; when asleep she couldn’t consent, and prior consent, even if established, was irrelevant, and could not be put in evidence. He was ipso facto a rapist.

 

It’s difficult to know where to start. For one thing, this decision licenses the law in Scotland to poke its nose into what one might reasonably think were the entirely unobjectionable bedroom practices of a fair number of people up and down North Britain.

 

It’s saying, in its bossy Celtic way, “If you want to have sex with your wife you must always thoroughly wake her up first: that’s the only practice we recognise, and if you do anything else we can have you banged up in Barlinnie for a good many years.” Indeed, it goes further.

 

 

Logically it means that if a couple happily make a habit of drunken intimacy every Saturday night after an evening’s clubbing, this too must stop. She can’t consent because she is tiddly, and he therefore becomes a weekly rapist. Put bluntly, any form of drunken sex, however intimate or long-standing the relationship, is now apparently illegal. Both have to wait in abstinence until they have sobered up, courtesy of the Caledonian Taliban, or they’ll be seeing a visit from the rape police. The Wee Frees at their most intrusive had nothing on this.

 

But it is not only that. The possibilities it opens up for blackmail by a jilted or dissatisfied partner are frightening: however much both parties may have previously enjoyed somnolent or drunken sex, she can now put entirely unfair pressure on him and say that if he doesn’t do as she wants she will make a rape complaint, with all the official sympathy and credulousness of the feminist movement behind her, and correspondingly painful consequences for him.

 

The Appeal Court doesn’t come out of this well: with engaging complacency it simply says that, if the law is too wide, that’s tough: but surely prosecutors can be trusted, and if serious problems arise the law might perhaps be changed. Put another way, the fate of many a man charged with one of the nastiest offences in the criminal law, likely to land him in the nonce’s wing in the nick, must now lie in the hands, not of a jury, who cannot be told that his partner has said she’s happy to have sex in her sleep, but of the kindness of prosecutors. I’m sure future panels (the Scots word for criminal defendants) will be very grateful.

 

But the other body that comes discreditably out of this is the new-style Scottish establishment. It’s not as if it wasn’t warned in 2009. The Scottish Law Commission, which prepared the legislation, saw the problem just described, and provided specifically for prior consent to be admissible in evidence. The Law Society of Scotland saw the problem, and recommended keeping prior consent. The Professor of Criminal Law at the University of Edinburgh saw the problem and recommended keeping prior consent.

She can’t consent because she is tiddly, and he therefore becomes a weekly rapist.

But the Cabinet Secretary for Justice, PC and highly left-wing SNP lawyer Kenny McAskill, was having none of it. He preferred to ignore the warnings, take the fashionable feminist line, later encapsulated in #MeToo and its baggage, and introduce the provision we now have.

 

The ever-compliant Scottish Parliament obediently did as it was told and passed it. The politicians then presumably went back to comfortable homes in middle-class Morningside or patrician Pollokshields to congratulate themselves over high tea on a job well done. And the rest, as you might say, is the woke history of an unhappily woke nation.

 

(Andrew Tettenborn is a professor of commercial law at a well-known UK university, who also teaches in Europe and elsewhere. In the 2001 General Election he stood as UKIP’s candidate in Bath)

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