Rape perpetrators will be recorded as male, says chief constable

A man who commits rape “is, should be, and will be recorded by Police Scotland as a male”, the chief constable of Police Scotland has confirmed.   

Jo Farrell set out the force’s stance during an evidence session in front of the petitions committee this morning, speaking about a petition created by the founders of policy group Murray Blackburn Mackenzie (MBM), which has been under consideration since July 2021 and seeks to accurately record the sex of people charged or convicted of rape or attempted rape. 

Farrell confirmed to the committee that she backs the petition, which states in its background information that “Police Scotland recently stated that a person directly charged with rape or attempted rape could be recorded as female”. 

This refers to an FOI response by Police Scotland in April 2021 to MBM, which stated: “If the male who self-identifies as a woman were to attempt to or to penetrate the vagina, anus or mouth of a victim with their penis, Police Scotland would record this as attempted rape or rape and the male who self-identifies as a woman would be expected to be recorded as a female on relevant police systems.” 

In its petition, MBM states that rape “is defined in law as involving penetration by a penis without consent” and therefore “by definition, the act of a male body (cases involving a surgically constructed penis appear to be unknown to date)”. 

Farrell told the committee that gender self-identification “is a complex area of public policy and practice” and the “debate has evolved over a number of years”.   

She said: “But let me be clear, my priority is to protect victims. Statistics and data accuracy matter, and we will always engage in a way that aligns to our values.”

A spokesperson for MBM said: “We are pleased that Police Scotland has moved to support our petition, and the wider principle of accurately recording sex across all crime types, as well trans status where relevant.

“We welcome the commitment to following the recommendations of the Sullivan Review and to prioritising this work.

“Recognising the need for consistent, reliable data and the moral imperative underpinning our petition, the chief constable has now drawn a line under the confusion in this area, and set a clear standard for other police forces to follow.

“We also welcome the commitment to engage with the Police SEEN Network.”

The statement continued: “We hope that this balanced and respectful approach signals a fresh start for Police Scotland, not only in relation to data, but in its handling of issues around sex and gender identity more widely.

“A question remains as to how the chief constable’s predecessors and their senior colleagues allowed the capture of the force’s policies and practices, to the detriment of something so basic as the accurate recording of sex in criminal investigations. It should not have taken so many years of pressure and scrutiny to get Police Scotland to abandon its defence of recording some male offenders as women, so that this ended up in the overflowing inbox of the current chief constable.”

Farrell previously confirmed Police Scotland’s stance on the issue in September last year, when she told a meeting of the Scottish Police Authority board that a biological man “who commits rape or serious sexual assaults will be recorded by Police Scotland as a male”.   

She said Police Scotland had been forced to determine its own policy and practice “in a way that achieves what we consider to be a legal and appropriate balance of rights and duties”, she told board members.    

Farrell said: “Neither the Scottish or UK parliaments have been able to set out a codified approach in legislation to the legal status, rights or duties pertaining to the concept of gender recognition in a way that reconciles with the Equality Act 2010.   

“It is within this context that Police Scotland and other public bodies have determined policy and practice in a way that achieves what we consider to be a legal and appropriate balance of rights and duties.   

“Policing needs to consider this in terms of the many situations and scenarios within which we encounter people, and this is not restricted to criminal investigations.”