Attempt to commit statutory rape a competent charge, Appeal Court rules
It is competent to libel an attempt to commit the offence of rape in s 1 of the Sexual Offences (Scotland) Act 2009, the Criminal Appeal Court has ruled.
Three judges upheld a trial court decision to repel a defence objection to the competency of an amended charge that alleged that the accused, RCB, sexually assaulted CD while she was intoxicated, under the influence of drugs and incapable of giving or withholding consent, remove her clothing, lie on top of her, "and attempt to penetrate her vagina with your penis and you did thus attempt to rape her", contrary to ss 1 and 3 of the 2009 Act.
It was not argued that there was insufficient evidence to convict, but that the terms of s 1 did not include attempted rape, and consequently a conviction under that section was incompetent. Section 3 covered any offence short of actual rape.
Lady Dorrian, the Lord Justice Clerk, who sat with Lord Bracadale and Lady Clark of Calton, refused the appeal. Section 294 of the Criminal Procedure (Scotland) Act 1995, which provides that "Any attempt to commit an indictable crime is itself an indictable crime", applied equally to statutory and to common law offences. "The fact that the completed offence under s 1 requires penetration does not prevent the libelling and proving of an attempt to commit a s 1 offence, where penetration had been attempted but has failed", she stated.
Attempts were not separately provided for in the Act, something that provided "powerful support" for the view that the matter was already covered by s 294. Rape, and attempted rape, was more than simply a sexual assault as covered by s 3.
Lady Dorrian added in conclusion: "One of the issues raised in the course of argument was a concern on the part of the appellant that what would appear on his record would reflect a contravention of s 1 simpliciter, without indicating that his conviction had been for attempted rape rather than the completed offence. We do not have sufficient information before us as to the means by which convictions are administratively recorded for the purpose of a criminal record to enable us to assess how real a concern that might be – it is not apparent that there is real consistency in such matters. However, we are of the view that it should not be at all difficult administratively to indicate that the conviction was for an attempt, and that it would be desirable for this to happen."