The criminal law exists in order to protect commonly accepted values against socially unacceptable conduct

Lord Cullen

They had been asked to deliver a definitive definition of the crime after the controversial acquittal of an Aberdeen student on a rape charge.

The move was sought by Scotland's senior law officer, Lord Advocate Colin Boyd QC.

He was concerned when Lord Abernethy ruled last year that Edward Watt had no case to answer because there was no evidence force had been used in the rape he was alleged to have committed.

Mr Boyd asked for a legal definition of rape, and during a subsequent hearing he argued that consent, rather than force, should be the main issue in deciding whether a woman had been raped.

He said no must mean no and nothing else, and that the jury must assess whether or not there was consent.

Colin Boyd asked the panel to focus on consent

The existing Scottish law dates back to 1858, when it was held that a woman had been raped if sexual intercourse had taken place "forcibly and against her will".

Delivering the judges' verdict at the High Court in Edinburgh, Lord Cullen said the court had agreed by a majority that this ruling should be overruled.

"It also held that the general rule in the law of rape is that the actus reus is constituted by the man having sexual intercourse with the woman without her consent and that mens rea on the part of the man is present when he knows the woman is not consenting, or at any rate is reckless as to whether she is consenting," he said.

The seven judges on the bench delivered individual opinions on the case.

Dissenting voices

The majority opinion was supported by Lords Nimmo Smith, Wheatley and Menzies and Lady Cosgrove, the only woman judge on the panel.

Lords Marnoch and McCluskey were the two dissenting voices.

Lord Marnoch argued that the current law should remain unless it was changed by the Scottish Parliament.

"Neither parliament nor any of our predecessors have ever thought fit to question its validity," he said.

Lord McCluskey disagreed with the decision

However, Lord Cullen said he believed that the Court of Appeal was the right place to establish a new rape law.

"The criminal law exists in order to protect commonly accepted values against socially unacceptable conduct," he said.

"What does the law of rape seek to protect in the modern world?

"It may be said with considerable force that it should seek to protect a woman against the invasion of her privacy by sexual intercourse, that is to say where that takes place without her consent."

Lady Cosgrove said: "An act of sexual intercourse taking place without the woman's consent is, in my view, an aggravated assault which, by virtue of the absence of consent, involves the criminal use of force."

The ruling will now be studied by the Scottish Executive to see if any change in legislation is required.