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Submission from Police Scotland of 22 November 2021

PE1876/T: Accurately Record the Sex of People Charged or Convicted of Rape or Attempted Rape

I refer to your correspondence of 7 October 2021 to Police Scotland in respect of the above petition and your request to provide a response.

I note the comments of the petitioners, in so far as they have asked the Scottish Parliament to urge the Scottish Government to require Police Scotland, the Crown Office and the Scottish Court Service to accurately record the sex of people charged or convicted of rape or attempted rape. Having considered the content of the petition, I offer the following by way of comment.

At present Police Scotland’s current operational and recording practice is that sex and gender will be used interchangeably. The sex/gender identification of individuals who come into contact with the police will be recorded on police systems such as crime management and custody databases on how they present unless an alternative gender is disclosed. This is the case for all offences.

In the context of operational duties, officers do not routinely ask the sex or gender of people they interact with. Police Scotland requires no evidence or certification as proof of biological sex or gender identity. There are, however, circumstances where the issue of biological sex may require to be explored for a legitimate policing purpose, for example sexual offences of Common Law Rape and Common Law Sodomy(pre-2010) and more specifically reports of contraventions of Sections 1 and 18 of the Sexual Offences (Scotland) Act 2009. The essential elements to allow the completion of these crimes outlined in the Sexual Offences (Scotland) Act 2009 is the penetration of the vagina, anus or mouth of the victim by a penis or surgically constructed penis. In order to charge a suspect / accused with rape it is therefore evidentially critical to ascertain if they have a penis or surgically constructed penis.

Their self-identified gender is of no relevance to the charge.

The relevant sections of the Sexual Offences (Scotland) Act 2009 have been reproduced below for your information –

Section 1 Rape

(1) If a person (“A”), with A’s penis -

(a) without another person (“B”) consenting, and

(b) without any reasonable belief that B consents,

penetrates to any extent, either intending to do so or reckless as to whether there is penetration, the vagina, anus or mouth of B then A commits an offence, to be known as the offence of rape.

(2) For the purposes of this section, penetration is a continuing act from entry until withdrawal of the penis; but this subsection is subject to subsection (3).

(3) In a case where penetration is initially consented to but at some point of time the consent is withdrawn, subsection (2) is to be construed as if the reference in it to a continuing act from entry were a reference to a continuing act from that point of time.

(4) In this Act—

“penis” includes a surgically constructed penis if it forms part of A, having been created in the course of surgical treatment, and

“vagina” includes—

(a) the vulva, and

(b) a surgically constructed vagina (together with any surgically constructed vulva), if it forms part of B, having been created in the course of such treatment.

Section 18 - Rape of a Young Child

If a person (“A”), with A’s penis, penetrates to any extent, either intending to do so or reckless as to whether there is penetration, the vagina, anus or mouth of a child (“B”) who has not attained the age of 13 years, then A commits an offence, to be known as the offence of rape of a young child.

The first point of note is that the Sexual Offences (Scotland) Act 2009 is sex and gender neutral in respect of a section 1 or 18 offence (Rape & Rape of a Young Child). It defines the perpetrator and victim of the crime as 'Person A' and 'Person B'. Secondly, in terms of Section1(4) above, it is therefore irrelevant, for the commission of the crime, if the perpetrator is legally defined as male or female or self identifies as male or female, it is only relevant that the perpetrator has a penis, and this includes a surgically constructed penis which has penetrated one of the defined bodily orifices.

There are specific circumstances where a woman may be recorded on police systems as having committed contraventions of Sections 1 and 18 of the Sexual Offences (Scotland) Act 2009.

I can confirm this will occur in the following scenarios:

If a woman is art and part of the rape.

Where a person, born male and who identifies as a female (whether they have a GRC or not) and then commits rape (providing they have a penis).

It is of note that the Background Information posted online in respect of the petition asserts

“Women may be charged with rape as accessories, but this is extremely rare. Only a very small proportion of offenders directly charged with rape or attempted rape would therefore need to be recorded as female to have a substantial and misleading effect on the understanding of female offending. The same issue appears to arise for information collected in other parts of the criminal justice system.

Recording sex accurately in these cases matters for data accuracy and trust in official statistics, public policy, media reporting, research, and for trust in public bodies.”

The first part of the narrative is indeed correct, in so far as it is very rare for a woman to be charged with rape. It may be helpful for you to be aware that following a Freedom of Information request, in July 2021, Police Scotland, in recognition of the public interest in this matter, conducted some analysis and provided data in respect of females who have been recorded as a suspect/ accused for the crime of rape between 2016 and 2020, the figures are as follows –

Table to be found in Annexe A. (102KB, pdf) posted 24 January 2022

Furthermore, Police Scotland conducted a physical review of these 28 crimes for the period 2016-2020. Following that review, it was established that none of the females recorded for the crime of rape were involved in the physical act itself i.e. the penetration of a vagina, anus or mouth with a penis or surgically constructed penis. Their involvement was art and part (aiding or abetting in the perpetration of the crime).

As such, and given the very low proportion of female suspects/accused, it is inaccurate to suggest, as per the petition, “Only a very small proportion of offenders directly charged with rape or attempted rape would therefore need to be recorded as female to have a substantial and misleading effect on the understanding of female offending” It is worthy of note that between 2016 and 2020, Police Scotland recorded 10,842 Rapes, this equates to 0.27% of perpetrators recorded as female, as such, any assertion that inaccuracies around the biological sex of a perpetrator recorded are of little if any statistical significance.

From the inception of Police Scotland in 2013 until 2015, we are unfortunately unable to provide the same qualitative data on this subject but once again there are no known cases where a biological male has been charged with the physical crime of rape and has self-identified as a women.

Police Scotland also recognise that there are additional challenges in this area as sex / gender is also used more broadly to denote a range of identities that do not correspond to established ideas of male and female.

It may be helpful for you to be aware that in light of recent guidance from the Scottish Government’s Chief Statistician, Assistant Chief Constable Gary Ritchie has instructed Police Scotland’s Data Governance Board to review our internal policies and recording procedures.

It should also be noted, however, that Police Scotland still uses a number of legacy IT systems and we are therefore limited in our ability to record gender as anything other than the binary option of male or female. We recognise that a person may not feel it appropriate for them to be assigned binary options and the situation will be reviewed as we roll out any new IT platforms.