Recording rapists as female will lead to bad policy-making, MSPs hear

Allowing people charged with rape to be recorded as female begins a domino effect that could ultimately lead to bad policy-making by government, the parliament’s public petitions committee has heard.

Giving evidence to the committee today, Lucy Hunter Blackburn of academic research organisation Murray Blackburn Mackenzie (MBM) said that if transgender people accused or convicted of rape are recorded as female rather than male then the statistics that bodies including the Scottish Government rely on for making policy would become skewed.

“There's a sort of domino effect in the system here which we notice which is once the police do it then the courts do it then the media,” she said.

“The system is linked and the police are important because they are the first point in the system at which a person might be mis-recorded by sex.”

Blackburn and her colleague Lisa Mackenzie were giving evidence to the Citizen Participation and Public Petitions Committee as it considers a petition they lodged in July 2021 calling on the government to require Police Scotland, the Crown Office and the courts to accurately record the sex of people charged or convicted of rape or attempted rape.

In its written evidence to the committee Police Scotland confirmed that “the gender identification of individuals who come into contact with the police will be based on how they present, unless an alternative gender is disclosed”, adding that it “requires no evidence or certification as proof of biological sex or gender identity”.

There have been several high-profile cases involving transgender sex offenders, including that of Isla Bryson, a convicted double rapist whose crimes were committed while living as a man but who began identifying as a woman after being charged.

Bryson was recorded as male by police but was referred to in court using female pronouns and was initially held in a female prison before being transferred to the male estate.

In her evidence, Blackburn made the point that, as rape is defined in law as penetration with a penis in circumstances where consent has not been given, it can only ever be perpetrated by a man.

“The sex is unambiguous of a rapist,” she said. “They [the police] cannot charge rape, unless they know the person in question has used an erect penis to rape a person.”

Mackenzie said that MBM had lodged the petition with the parliament because statistics are used to “generate an understanding of offending patterns” and it will be impossible to make sense of those patterns if the data held is incorrect.

“Trust in statistics is very important,” she said. “It's not as if data just sits in the ether and we don't do anything with it.

“This is foundational for public policymaking. Public policymaking and public resource allocation is made on the basis of data so if we suddenly see what looks like an explosion in female rape or female sexual assault, then we might want to divert public resources to deal with this new phenomenon but actually it turns out it isn't a new phenomenon.

“It's actually a male offence committed by males and that's how we should be dealing with it.”

This week the Scottish Prison Service (SPS) issued new guidance on how transgender prisoners should be dealt with in the prison system after facing criticism for its handling of the Bryson case.

Immediately after the case it undertook a lessons-learned review that resulted in a temporary ban on transgender prisoners with a history of violence against women, including sexual offences, being relocated from the male to female estate.

Newly convicted transgender prisoners were also required be placed in an establishment "which aligns with their gender at birth".

The new policy, which has been described as being “individualised” by the SPS, effectively upholds that, but says that even transgender prisoners with a history of violence against women can be housed in female prisons in “exceptional circumstances”.

Scottish Conservatives justice spokesman Russell Findlay, who last year tabled an unsuccessful amendment to the Scottish Government’s Gender Recognition Reform Bill (GRR), lambasted the policy, saying it would continue to put female prisoners at risk.

“The SNP shamefully used vulnerable and voiceless female prisoners to impose its dangerous gender self-ID policy by stealth, which resulted in the obscene case of Isla Bryson being sent to a woman’s jail,” he said.

“These long overdue new guidelines actually put women at even greater risk by further eroding their fundamental right to single-sex space.

“They say that male prisoners with a history of violence against women or girls should be allowed in the female estate and will only be blocked if they present a risk, which is completely subjective. This is clearly unacceptable – and SNP ministers need to go back to the drawing board.”

Findlay had attempted to amend the GRR bill to ensure gender self-ID was not available to anyone awaiting trial for sexual offences.

Though that bid failed, the bill – which passed in December last year – has not yet been enacted because it has been opposed by the UK Government using Section 35 of the Scotland Act.

The Scottish Government has challenged that decision in court, with a three-day hearing held in September. The judge overseeing the matter, Lady Haldane, has warned that due to the case’s “unique, interesting and challenging” nature it is likely she will take some time to deliver her judgment.