Back in February, one of the reasons I gave for my decision to stand down as first minister was a concern about the part I might be playing, however unwittingly, in the polarisation of our politics.
Polarised, often highly toxic, public discourse is not a uniquely Scottish phenomenon. And by no stretch of the imagination was I the sole or even primary cause of it in Scotland. But I had come to feel that the duration of my time in the trenches of frontline politics was making it harder for me to broker the common ground necessary to advance difficult or controversial policy changes.
It is now almost two months since I left office and while that period hasn’t unfolded exactly as I anticipated – for reasons I won’t go into here – it has given me a different perspective. The benefits of the rear-view mirror (I am also learning to drive!) are considerable. On the issue of polarisation, I think that, if anything, I underestimated the depth of the problem.
That people have strong opinions and express them vehemently is to be celebrated. Give me passion over apathy any day of the week. But it is depressingly striking in today’s politics just how quickly people adopt fixed and immovable positions. I am not breaking news with this observation – but being more removed from the cut and thrust has made it so much starker to me.
The reaction to the proposed pilot of judge-only rape trials in Scotland, part of a package of measures to improve access to justice for victims of this appalling crime, is a case in point.
Before going further, full disclosure. I was first minister when the cabinet signed off the victims, witnesses and justice reform (Scotland) bill that includes this proposal. I support it. However, I also recognise that the arguments for and against are finely balanced – as is often the case with legislation seeking to tackle deep-seated problems.
Indeed, that is why the proposal is for a time-limited pilot only – to test whether or not judge-only trials could help address the deficit of justice in rape cases without compromising the right to a fair trial of those accused. There has always been a recognition that the principle and detail of this proposal need serious consideration.
But before the ink was even dry on the draft legislation and without a single word of debate or evidence being heard in parliament, let alone the shape of the final proposal being known, fixed positions had been staked.
I am not expecting, or even trying, to change minds with this article – but I am expressing a hope that it is not too late for us all to take a breath. This issue matters. It should be beyond party politics. And it should not be beyond our body politic to approach it differently.
First, we should accept there are valid points on both sides and allow some good faith to enter the debate.
Contrary to what has been suggested, it is not a politician-inspired plan to undermine the justice system. In fact, the proposal is based on a recommendation from Lady Dorrian, Scotland’s second most senior judge.
And it seeks to address a genuine issue. In Scotland in 2020-21, of the 2,176 rapes or attempted rapes reported to police, only 152 gave rise to a prosecution. And of these, only 78 resulted in a conviction – a conviction rate for rape and attempted rape of just 51%, compared with 91% for offences overall.
The reasons are complex. But the impact of so-called “rape myths” can’t be ignored. We know what these are: that a woman who was dressed a particular way, or had been drinking, or in a relationship with her alleged attacker, must be at least partly to blame; that sex can only be rape if physical force is used – anything less implies consent; or that a woman who doesn’t immediately report a rape to the police must be making it up.
It is uncomfortable to acknowledge that such views still exist in a modern society, but they do. And if they are still prevalent in society, is it credible to think they will never be present in the jury room? There is a strong case for change.
But the counter-arguments are far from frivolous. It has long been accepted that for the most serious crimes, the sacrosanct right to a fair trial means trial before a jury of peers. Judges may be just as vulnerable to “rape myths” as juries – and as there is only one of them rather than a whole panel of jurors with mixed views, the impact may be greater.
Even if this proposal did help solve the problem, would it be at the expense of the fundamental rights of those accused of crime? And is a pilot that involves scrutiny of conviction rates consistent with the independence of the judiciary?
All these points, for and against, must be considered and addressed. We should proceed on the strength of evidence and reasoned argument and, where necessary, make amendments to the bill as it stands.
It is surely at the end of that process – not before it has even started – that a judgment should be made on whether or not it is possible to design a pilot that might help tackle the denial of justice for many rape victims, without compromising the rights of those accused of such crimes.
I hope we may yet proceed on that basis. It will require the government, as well as critics of the bill, to be prepared to keep an open mind. To that end, I was heartened to hear the justice secretary talk of the need for “sober and serious debate and scrutiny”. She has said her door is open and should be taken at her word.
As the backbencher that I now am – albeit one who supports the bill – I am open to discussion on all aspects of it (it proposes much more than judge-only trials), and to supporting or tabling amendments that help allay concerns.
Above all, given the deeply serious issues the bill seeks to address, it would be good to think we might take the opportunity it offers to demonstrate that the descent into a polarised and therefore paralysed politics is not as inevitable as it seems. I live in hope.
Nicola Sturgeon is a member of the Scottish parliament and a former first minister of Scotland
Information and support for anyone affected by rape or sexual abuse issues is available from the following organisations. In the UK, Rape Crisis offers support on 0808 500 2222 in England and Wales, 0808 801 0302 in Scotland, or 0800 0246 991 in Northern Ireland. In the US, Rainn offers support on 800-656-4673. In Australia, support is available at 1800Respect (1800 737 732). Other international helplines can be found at ibiblio.org/rcip/internl.html
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