Scots law ‘grey area' may let men avoid teen rape charges
Although the age of consent is 16, the peer said the law in England and Wales had created space where adult men groom and exploit children and then rely on this perceived consent to avoid the most serious charges.
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In response, Home Secretary Yvette Cooper told the House of Commons that the UK Government would change the law to ensure adults who engage in penetrative sex with anyone under 16 face a mandatory charge of rape.
MSPs have now called for a similar move in Scotland, where the law also makes a distinction between children under 13—where consent is not a defence—and those aged 13 to 15.
The Tories said failing to do so could lead to Scotland "becoming a safe haven for child abusers".
Although sexual activity with anyone under 16 is illegal under the Sexual Offences (Scotland) Act 2009, decisions about whether to prosecute, and what offence to charge, are left to the discretion of prosecutors.
Baroness Louise Casey said too many men were seeing their charges downgradedFactors such as age difference, relationship history, and evidence of coercion or grooming are all taken into account.
In 2023, 70-year-old William Melville was jailed for five years for having sex with a teenager behind an Aldi in Glasgow city centre. Because the girl was 13, he was charged with having sex with an 'older child'.
In countries including France or Sweden, Melville would automatically have been charged with rape.
Sharon Dowey, the Scottish Conservative shadow minister for victims and community safety, told The Herald: 'The Casey Review revealed some cases which will have deeply troubled the public and parents, given the age of those involved.
'They will be worried that the same grey area in the law could still exist up here where those who have sexually abused teenagers are not properly punished.
'If the rules down south are changed in light of these harrowing cases, then the law must be tightened up in Scotland as well to avoid any possibility of us becoming a safe haven for child abusers.'
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In her National Audit on Group-Based Child Sexual Exploitation and Abuse, Baroness Casey said the "grey area" in the law was "largely aimed at avoiding criminalising someone who reasonably believed a child was older than they were or criminalising relationships between teenagers".
However, she said this practice led to 'perverse outcomes'.
'We were told of one case involving a 15-year-old vulnerable child who had been sexually exploited by an older man who had used the 'boyfriend model' to groom her.
'Their relationship was well known to local services and the police who tried to disrupt it, but she was insistent she was in love with the older man and did not want to leave him or support a prosecution.
'Despite having substantial evidence that they were having sex, including images on both of their phones and hotel room bookings, the fact she was 'in love' with him, said she had consented and would not support the prosecution led to the case not making it to court."
Baroness Casey said several years on, the girl—now an adult—realised she was a victim of child sexual exploitation, and had gone back to police to make allegations against the man.
In 2021, France adopted legislation which characterised all sex with a child under the age of consent—15—as rape. Previously, prosecutors had been required to prove the act was non-consensual.
The French Government introduced a 'Romeo and Juliet' clause allowing for sexual relations between a child and an individual up to five years older.
Similarly, in Sweden, if a person has sex with someone under 15, it is legally defined as 'rape against a child' even if the child agreed at the time.
In the Commons on Monday, Ms Cooper told MPs: 'We will change the law to ensure that adults who engage in penetrative sex with a child under 16 face the most serious charge of rape, and we will work closely with the Crown Prosecution Service and the police to ensure that there are safeguards for consensual teenage relationships.'
A spokesperson for the Crown Office and Procurator Fiscal Service, Scotland's independent public prosecution service, said: 'The Crown Office and Procurator Fiscal Service will, alongside our partners, pursue and prosecute those who sexually exploit children. We continuously review our approach to prosecuting sexual offenders.
'As an independent prosecution service, COPFS apply existing law in Scotland and would contribute to appropriate discussion of legislative reform.
'There is a wide range of criminal conduct which can be considered as sexual offending.
'Prosecutors are committed to listening to children and using their experience and understanding of child sexual exploitation to build strong cases which reflect the behaviour of offenders. We consistently and successfully prosecute those who commit child abuse.'
A Scottish Government spokesperson said: 'Child sexual abuse and exploitation has a devastating impact, which is why we are taking action to ensure that children are protected from harm. We have also established a national multi-agency Child Sexual Abuse and Exploitation Strategic Group, to consider all UK and Scottish work and make recommendations to Ministers accordingly.
'The independent Scottish Child Abuse Inquiry is undertaking an extensive review of child protection policy and practice in Scotland and will report with recommendations for further development in due course.
"In the meantime, it is crucial to focus efforts and resource on working with partners across the system to support embedding and implementation of the National Child Protection Guidance and providing a trauma-informed response to victims.'
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