Scotland is to have a new legal definition of rape which will, for the first time, define the notion of “consent”.

The change, outlined by the Scottish government in a new Sexual Offences (Scotland) Bill published yesterday, will also make rape a statutory offence rather than a common law offence and will widen it to include male rape. The Bill will also include a new offence to cover the spiking of drinks with date-rape drugs and will also make it illegal to send sexually offensive texts or e-mails.

The legislation includes “protective offences” to guard against sexual activity with those whose capacity to consent is either entirely absent or not fully formed either because of age or a mental disorder.

The reforms covered by the Bill are in line with recommendations from the Scottish Law Commission, which was asked in 2004 to examine the law on rape and other sexual offences. However, Scottish ministers have turned down a Commission proposal to decriminalise all consenting sex between 13 to 15-year-olds as well as a recommendation to decriminalise consensual adult sexual violence.

The Bill will repeal the common law offences of rape, sodomy and “clandestine injury” to women, putting in their place new statutory offences. It defines consent as “free agreement” and lists situations where this would be lacking. One would be where a victim was incapable through alcohol or another substance.

“When the complainer is at the time so intoxicated as to have no capacity to freely agree to sexual activity, then anything he or she said or did to indicate consent does not amount to free agreement,” said a policy document published with the Bill.

The legislation will also tackle the issue of consent, by introducing a notion of “reasonable consent”. At present, an accused person must merely have an “honest or genuine” belief that a victim consented, the policy document said. In future that belief must also be a “reasonable” belief.

Kenny MacAskill, the Scottish government justice minister, announcing the Bill, said that it was not the case that reform of rape law would, on its own, improve low conviction rates. The Crown Office said last week that the widely quoted rape conviction rate of 3.9 per cent - the proportion of reports to police that result in a conviction - fell to 2.9 per cent in 2006-07. “Other on-going work is vital - improving investigation and prosecution of rape and sexual assault, reviewing law of evidence and challenging public attitudes to rape and sexual assault,” Mr MacAskill said.

On the decision not to decriminalise consenting sex between 13 to 15-year-olds, Mr MacAskill said that the law must continue to make clear that society does not encourage sex between children as it can be a cause for concern for a child's welfare even when apparently consensual.

Tom Halpin, of the Association of Chief Police Officers in Scotland, said that it welcomed reform in addressing disparity in gender-specific sexual offences, such as rape. “The proposal to bring the law up-to-date, giving equal status to men and women, boys and girls, as well as clarity to issues around consent, is a positive amendment to existing legislative provision,” he said.

Rape Crisis Scotland also welcomed many of the measures, but its spokeswoman said that they had concerns about whether the legislation would significantly improve conviction rates.

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