Common Rape Myths and the Scottish Legal System

Author:Kimberley Dewar
Position:Student at the University of Dundee (1st Year, LLB Scots Law). The author would like to thank the DSLR Editorial Board for their patience and helpful comments on previous versions of this paper.
Pages:1-8
Dundee Student Law Review, Vol. 4(1), No.1
Common Rape Myths and the Scottish Legal System
Kimberley Dewar
Introduction
When beginning a discourse on rape culture and myths, it could be argued that the societal
attitudes toward these behaviours are fixed by the way in which the legal system of that
society conducts the following processes: investigation; prosecution; and the subsequent
punishment of these crimes.1 Scotland, as a common law jurisdiction, has been slow to
change its jurisprudence regarding rape and sexual offences: a factor which has affected the
entrenchment of commonly held misconceptions surrounding such crimes. The enactment of
the Sexual Offences (Scotland) Act 2009 (hereafter known as the ‘2009 Act’) was a key
milestone in the development of Scotland’s jurisprudence in this area, as it broadened the
definition of rape and consolidated the previous common law offences into comprehensive
legislation.2 Additionally, in 2017, the Scottish Government passed legislation providing new
jury directions which were specific to rape cases in an attempt to rebalance attitudes amongst
jurors surrounding rape myths.3
There are questions however about whether this legislation is actively dispelling rape myths
within Scottish society. In particular, there are many different myths about the laws
surrounding rape, which have been highlighted by several activist groups, notably Rape
Crisis Scotland.4 The continued existence of these myths can have negative effects on the
Student at the University of Dundee (1st Year, LLB Scots Law). The author would like t o thank the DSLR
Editorial Board for their patience and helpful comments on previous versions of this paper.
1 For example, see the effect of Police scepticism creating false allegations within rape cases - Gerry Chambers
and Ann Millar, Investigating Sexual Assault (Scottish Office: Central Research Unit, 1983), 86-87.
2 For a general discussion of the topic, leading up to the change in law, see: Scottish La w Commission, Repor t
on Rape and Other Sexual Offences (Scot Law Com No 209 2007).
3 Criminal Procedure (Scotland) Act 1995, ss. 288DA-288DB. [Inserted by the Abusive Behaviour and Sexual
Harm (Scotland) Act 2016 s.6] (‘CP(S)A’).
4 For an example of this organisation’s campaigns, see: Rape Crisis Scotland, ‘I Just Froze’ (Web Page, Ra pe
Crisis Scotland, 2018) d.org.uk/i-ju st-froze/> Accessed 4 April 2018.

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