(169)  Parental rights and gay couples

Following the decision of Sheriff Laura Duncan in  X v Y 2002 GWD 12-344 (see No 161 below) that a male sperm donor had parental rights over a child while the mother’s lesbian partner did not, although the child lived with the latter couple, Sheriff Noel McPartlin held in Edinburgh on 19 March 2002 that a lesbian couple, each of whom had a child (one from a previous marriage, the other by artificial insemination by anonymous donor), might each enjoy parental rights over the other’s child (Scotland on Sunday, 7 April 2002). 

(167)  Rape redefined

A Court of Seven Judges over-ruled the precedent of Chas Sweenie (1858) 3 Irv 109 and held that an accused does not have to have used force to overcome the consent of his victim in order to be guilty of rape, in a majority judgment (5-2) issued on 22 March 2002.  Instead, the majority ruled, rape consists in a man having sexual intercourse with a woman without her consent, the mens rea for the offence consisting in knowledge that the woman was not consenting or recklessness as to whether she was consenting.  The case followed a reference by the Lord Advocate.

(166)  Fox-hunting bill receives Royal Assent

The Protection of Wild Mammals (Scotland) Bill, which seeks to ban fox-hunting with dogs, received Royal Assent on 15 March 2002.  It can therefore be taken that neither the Law Officers nor the Secretary of State for Scotland thought the Bill to be beyond the legislative competence of the Scottish Parliament (see below No 153).  Any challenge to the Bill on this ground will therefore have to be made in the courts by persons or organisations with an interest in the matter.  Meantime, discussion of legislative regulation of fox-hunting in England and Wales has resumed, with the most likely outcome now thought to be a complete ban except in certain areas of the country.