Scottish Parliament public petition on recording sex accurately in cases of rape or attempted rape

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Background

In April 2021 Police Scotland confirmed in a Freedom of Information response that it allows incidents of rape and attempted rape to be recorded based on a person’s self-declared gender identity. The response explained:

‘If the male who self-identifies as a woman were to attempt to or to penetrate the vagina, anus or mouth of a victim with their penis, Police Scotland would record this as attempted rape or rape and the male who self-identifies as a woman would be expected to be recorded as a female on relevant police systems.’

Police Scotland, 1 April 2021

On 2 June 2021 we lodged a petition with the Scottish Parliament Public Petitions Committee, ‘calling on the Scottish Parliament to urge the Scottish Government to require Police Scotland, the Crown Office and the Scottish Court Service to record accurately the sex of people charged with or convicted of rape or attempted rape‘.

The petition is currently open and if you would like to sign, the link is here.

Signatories can be resident anywhere, not only in Scotland. Signatories’ names are not published: neither are they shared with MSPs or ourselves.

Why did we submit a petition?

We have engaged with various organisations over the past two years, seeking clarity on what recording practices underpin the production of statistics in the criminal justice system. We have been unable to obtain clear answers on when, how, and why practices have changed. We believe the Public Petitions Committee is uniquely placed to use its powers to establish what current policies are, why and how they have been developed and to offer support to the case for re-establishing clear practices on the accurate recording of sex of all those charged with or convicted of rape or attempted rape.

The draft guidance on data collection for public authorities issued by the Scottish Government’s Chief Statistician in December 2020 had already demonstrated that the arguments for accurate recording of sex in these cases were not accepted within government. The public and media reaction to the reporting of the Police Scotland Freedom of Information response in April put beyond doubt that the recording of sex for these offences in particular raises substantial issues of trust in public institutions and official statistics. The nature of the offence means that questions about privacy in relation to sex which are sometimes raised in other contexts cannot apply. The FoI response itself was also not entirely consistent with a previous statement by the Scottish Government.

In April, we decided the Parliament’s Petitions Committee now offered the best route to take this forward, and so began the process of developing a proposal after the system re-opened for submissions in May. The Committee is well-placed to obtain more clarity about the situation across different organisations, to bring some transparency to consideration of the issues and, if persuaded, to give direction about the importance of recording sex accurately in these cases across the criminal justice system, as well as offering a formal mechanism for establishing the level of public interest. More information on the public petitions process can be found here.

Why accurate recording matters

Section 1 of the Sexual Offences (Scotland) Act 2009 defines rape as requiring the use of a penis. Recently, Police Scotland described its recording policy in relation to rape and attempted rape as:

“If the male who self-identifies as a woman were to attempt to or to penetrate the vagina, anus or mouth of a victim with their penis, Police Scotland would record this as attempted rape or rape and the male who self-identifies as a woman would be expected to be recorded as a female on relevant police systems”

FoI response to us, 1 April 2021. The original FOI response, on which we sought clarity, is here.

Reliability and trust in statistics

In 2019-20 in Scotland there were 2,343 reported rapes or attempted rapes, 300 prosecutions and 130 convictions. All convictions were recorded as male.

The figures for female offenders are therefore very sensitive to any reclassification of cases. It is possible in theory for a woman to be charged with rape as an accessory. In practice however, such cases are very rare. We queried the one recorded female conviction for rape or attempted rape in the past decade (see 2018/19: Table 6b): the Scottish Government now believes this is likely to be due to a “data error”.  We have not found a case reported anywhere of a rape committed using a surgically-constructed penis. 

Commenting on current police policy in the press, the Scottish Government stated ‘this is a matter for Police Scotland’ (The Times Scotland, 17 April 2021). In the same article, the Cabinet Secretary for Justice was reported to have provided a different description of police policy to an MSP in earlier correspondence. This had suggested that physical sex would be recorded unless an offender had changed their sex in law, via the acquisition of a Gender Recognition Certificate.

According to a response to a parliamentary question, the Scottish Courts and Tribunal Service records cases by ‘self-declared gender’, rather than physical or legal sex, ‘unless evidentially relevant to the crime’. The relevant SCTS guidance does not discuss whether sex would be regarded as relevant in all cases of rape or attempted rape, but at first sight it appears it would not be.

This petition is only concerned with the accurate recording of physical sex on these cases. Whether, where relevant, gender identity should be recorded by the police, prosecutors and the courts, in addition to sex, is a separate issue. It should be stressed that to the best of our knowledge there is no evidence that having a transgender identity is associated with a higher risk of offending, including sexual offending, whether in the population generally, or looking only at all people born male. Ensuring any suspects with a transgender identity are treated sensitively by police and court staff should be dealt with as a separate matter from gathering data for use in anonymised form.

We do not think that organisations providing services to those who have experienced sexual violence should be expected to see this as a priority issue for them to lead on, given their limited resources. They already face large challenges in providing support to individuals, including the relatively low conviction rate for these offences.

This petition instead raises questions of principle, trust in statistics, and trust in public organisations. Accurate data recording matters for research, public policy development, and for public understanding of women’s offending.

Ethical considerations

The petition also raises questions about how police and court recording practices can affect those who have reported rape or attempted rape. For example, how perpetrators are described to complainants, how complainants are expected to describe perpetrators in police interviews and when giving evidence in court, and how recording may affect media reporting.

We believe strongly that those who have experienced rape and attempted rape should be free to describe how they perceive their attacker’s sex in their own preferred language, and to have their attacker described to them in the same way. The Committee could help clarify the situation here.

We recognise that much higher rates of male offending are also seen for other types of offence, including sexual offending more generally, and violent offending. Similar arguments can be made about the risks of credibility of official statistics, muddying the understanding of offending patterns for women and any effect on what is expected of victims. Those arguments deserve further attention, but they are not the focus of this petition.

What happens next?

The Committee first considered the petition on 6 October 2021. It remains under active consideration. Actions taken so far including asking for evidence and information from the Scottish Government, other organisations, and ourselves (the petitioners). Other possible actions include inviting the petitioners to talk to the Committee; referring the petition to another committee; recommending actions for the Scottish Government; asking for a debate about the petition in the Chamber; or closing the petition.

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