Healthcare professionals - supporting adults who present having experienced rape or sexual assault: clinical pathway

Appendix A – Legislation and Policy Context

This section sets out the legislation and policy context for the provision of services to people who have experienced rape or sexual assault and the legislative framework for prosecution of people who commit acts of rape and sexual assault.

As noted above, this pathway contains references to legislation that are relevant to forensic medical services. This pathway does not supersede or alter any duties or requirements imposed by legislation or legal obligations and principles arising from case law determined by the courts (more applicable to criminal justice matters). Legislation may have been amended before this document is next reviewed and it should not be considered a comprehensive description of the law in this area. Case law may also have changed. If needed, independent advice should be obtained on the accuracy of any references to legislation or reference to any other legal obligations or descriptions of the law. If legal advice is required in relation to the provision of care, this should be sought through the normal Health Board process.

Sexual violence is predominantly a crime against women, children and vulnerable adults that may be contextualised in gender, equality and inequalities policies; however, the Sexual Offences (Scotland) Act 2009^[106] is drafted in gender neutral language. The obligation to provide accessible and integrated services to all individuals of sexual violence is affirmed in Articles 24 and 25 of the Council of Europe Convention on Prevention and Combating Violence against Women and Domestic Violence (“Istanbul Convention”; Council of Europe 2014)^[107].

The UK Government became a signatory of the Convention in June 2012. The UK Government is obliged to observe other international obligations to take actions to mitigate violence against women including the Convention on Elimination of all Forms of Discrimination against Women (CEDAW) (United Nations Entity for Gender Equality and the Empowerment of Women (1979)^[108].

These are reflected in the Scottish Government’s strategy Equally Safe, Scotland’s strategy for preventing and eradicating violence against women and girls^[109].The strategy sets out the following vision:

A strong and flourishing Scotland where all individuals are equally safe and respected, and where women and girls live free from all forms of violence and abuse – and the attitudes that help perpetuate it and aim to work collaboratively with key partners in public, private and third sectors to prevent and eradicate all forms of violence against women and girls (Scottish Government 2016).

Rape and sexual assault are statutory offences under the Sexual Offences (Scotland) Act 2009^[110]. The Act creates certain sexual offences against adults, older children (13-15) and younger children (under 13). Younger children are deemed to have no capacity to consent to sexual activity. The conduct which consists of the crime of ‘rape’ and ‘sexual assault’, as well as what is meant by consent to sexual activity is also found within the Act.

Scottish Government policy aims to tackle the significant inequalities that people often experience because of trauma and abuse. There is emerging evidence that trauma-informed systems can have better outcomes for people affected by trauma. Transforming Psychological Trauma: A knowledge and skills Framework for the Scottish Workforce (NHS Education for Scotland 2017)^[111] involves recognising the need for trauma related knowledge and skills across the whole workforce, not just for those with a remit to respond directly to the needs of those affected by trauma.

The Justice in Scotland: Vision and Priorities^[112] was published by Scottish Government in 2017 and set out 4 outcomes for a just and resilient Scotland:

• We live in safe, cohesive and resilient communities
• Prevention and early intervention improve wellbeing and life chances
• We deliver person-centred, modern and affordable public services
• Our system and interventions are proportionate, fair and effective

One of the six priority areas is to improve the experience of people who have experienced rape or sexual assault and witnesses, minimising court attendance and supporting them to give best evidence (Scottish Government 2017).

Useful Resources

Equality and Human Rights Commission (2018) Human Rights Act (1998)^[113]

Equality and Human Rights Commission (2019) Protected Characteristics^[114]

Scottish Government (2007) Adult Support and Protection (Scotland) Act 2007^[115]

Scottish Government (2015) Statutory Guidance on Corporate Parenting of the Children and Young People (Scotland) Act 2014^[116]

Scottish Government (2019) Getting it right for every child^[117]

Scottish Government (2019) Violence Against Women and Girls (VAWG)^[118]

The Independent Review of Learning Disability and Autism in the Mental Health Act (2019) Stage One Report^[119]

UK Government Adults with Incapacity (Scotland) Act 2000^[120]