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Petitioner submission of 7 June 2021

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

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.”

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: 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”. 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.

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.

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.