MSPs may question police on how the sex of rape accused is recorded

Police Scotland could be questioned by MSPs after the force told a Holyrood committee there were “no known cases” where someone who was born male but identified as female had been charged with rape.

The force made the comment in a submission to Holyrood’s Citizen Participation and Public Petitions Committee in November last year – less than two months before Isla Bryson went on trial charged with raping two women.

Bryson, who was born Adam Graham, was convicted of both charges and was initially sent to Scotland’s only all-female jail, Cornton Vale outside Stirling, with First Minister Nicola Sturgeon later intervening to make clear the rapist would not serve the jail term in a female prison.

Police Scotland had said in November that “there are no known cases where a biological male has been charged with the physical crime of rape and has self-identified as a woman”.

The force was responding to a petition put forward by three women – Lucy Hunter Blackburn, Lisa Mackenzie and Kath Murray – calling on the Scottish Government to require the police, the Crown Office and the Scottish Court Service to “accurately record the sex of people charged or convicted of rape or attempted rape”.

Commenting on Police Scotland’s response, committee convener Jackson Carlaw said on Wednesday: “That may have been their view at the time but as Parliament knows subsequently that is not a robust basis on which to form a policy judgment.

“I think we might want to hear further from them on that.”

The committee also agreed to invite the three women, who first lodged the petition in July 2021, to appear before them.

MSPs agreed to keep the petition open, with committee member Fergus Ewing saying he would “like to hear from the petitioners themselves”.

The SNP MSP said that on this “sensitive issue”, there is a risk that women who had been raped could be negatively affected if the perpetrator of the crime was recorded as being female.

Mr Ewing said: “There must be a risk of retraumatising the victims of rape by failure to record the perpetrator as male, and possibly recording the gender of the perpetrator as female.

“I think we shouldn’t underestimate the harm, the trauma that this can cause.”

In his written response to the committee, Justice Secretary Keith Brown said: “It is a matter for Police Scotland to determine how the sex of people charged or convicted of rape or attempted rape is recorded within their operational databases.

“Similarly, the recording practices of the Crown Office and Procurator Fiscal Service and the Scottish Courts and Tribunals Service are operational matters for those bodies.”

Dr Blackburn said afterwards she was “very pleased that the committee agrees to keep our petition under active consideration and that this issue matters”.

She added: “As the convener of the committee, Jackson Carlaw observed Police Scotland might wish to ‘reflect on their previous response in which they said there are no known cases where a biological male has been charged with the physical crime of rape and has self-identified as a woman’.

“We assume that this was a reference to the recent conviction of Isla Bryson/Adam Graham, a double rapist who identifies as a woman and who was initially accommodated in the women’s prison HMP Cornton Vale.”