Critics blame the legal rule of corroboration in Scots Law for these statistics
The conviction rate for rape and attempted rape was 41% last year, according to statistics published by the Scottish government.
The conviction rate was down 7% on the previous year, meaning 59% of all rape cases resulted in acquittal. Acquittal for sexual assault remained low at 35%, an increase of 7% on the previous year. The conviction rate for all crimes in 2016-17 was 86%.
Commenting on the release of the report, the Justice Secretary Michael Matheson MSP said: "Scotland’s courts continue to sentence those who pose significant risks to public safety to imprisonment."
“While the relatively low conviction rate for rape reflects, in part, the challenging evidential requirements to prove this crime, the government will continue to seek to strengthen the law where possible, and how such cases are dealt with.
“As well as ensuring the justice system has the resources needed to pursue perpetrators and to better support victims, our preventative work includes education on the pervasive nature of gender-based violence – an issue on which people across society, in families, schools and the wider community, must continue to speak out against.”
Critics have argued that the low rate of conviction for rape and attempted rape in Scotland is exacerbated by the legal rule of corroboration in Scots Law, which imposes strict rules for evidence in order to convict an accused person. This rule does not exist in other parts of the UK.
Glasgow University Regius Professor of Law James Chalmers told The Glasgow Guardian, “The government has for some time been considering removing the requirement of corroboration in criminal cases. This is seen as posing particular difficulties in rape cases.”
However, Professor Chalmers also explained that the strict corroboration rule may not be impacting on the statistics. "As prosecutions are only currently brought where the Crown Office believe they can put corroborated evidence before the court, the low rate of convictions may indicate that corroboration is not the real problem here – even where corroboration is available convictions are difficult to secure.”
The Scottish government introduced new legislation in 2009 to modernise the law in Scotland on sexual offences. The Sexual Offences (Scotland) Act 2009 is one of a number of measures which attempt to make the process for convicting sexual offenders easier and more humane.
Conviction rates for sexual offences are up from less than a quarter in 2007-08 to more than a third last year. There is also new guidance for judges to direct jurors in these cases, which came into effect in April 2017. These aim to challenge preconceived notions of how people "should" react when they are the victims of sexual assault.
The Justice Secretary explained: “Since last April judges are required to direct juries in certain sexual offence cases on how to consider evidence – specifically explaining why a victim may not physically resist their attacker, nor report an offence immediately. Our on-going Jury research is also examining how juries reach decisions and use the ‘not proven’ verdict."