Two weeks ago we launched our Holyrood asks: 6 actions we want candidates and parties to commit to that would improve the landscape for survivors of sexual violence in Scotland.
All of these asks are critical – but today we want to talk about just one: End Not Proven.
Uniquely, Scotland has three verdicts – Guilty, Not Guilty and Not Proven. Not Guilty and Not Proven have the same impact – they are both acquittals, and there are no legal consequences for the accused if they get a Not Proven verdict.
But why does it need to go?
Firstly, the Not Proven verdict is used disproportionately in rape and attempted rape cases. In 2018/19 40% of acquittals in rape and attempted rape cases were Not Proven, compared with 19% of all crimes and offences.
Research has shown that the Not Proven verdict is widely misunderstood – not surprising given it has entirely the same consequences as Not Guilty – with some people taking it to mean the case can be retried (it can’t) or believing it hints at guilt (legally this is not the case).
Recent evidence highlighted that juries hold problematic attitudes towards rape complainers (legal term) which is unsurprising when taken alongside attitudinal surveys. These surveys show time and time again harmful ideas about sexual violence, victim-blaming and misguided expectations of how people respond to rape are still deeply held by the Scottish public, who are ultimately past, present and future jurors. There is a very real reluctance to convict in rape cases – conviction rates are still shamefully low, the lowest of any crime type; quite simply this means that guilty men are walking free, and survivors are left without justice.
Nobody doubts that being a jury member in a trial is an immensely difficult task, but increasingly a picture builds of the Not Proven verdict being handed out as consolation prize for victim-survivors. Listening to the voices of those who have received this verdict shows that this is not how it is received.
It has been described to us as a ‘cop-out’, perceived an ‘easy option’ so that jurors can walk away from what are often intense and gruelling trials falsely feeling as though they gave the complainer (legal term) something.
We have been proud to work alongside Miss M – and many other survivors – who have argued powerfully for the Not Proven verdict to go. Far from the closure that people might assume this verdict provides, we have heard from countless survivors who say that it has left them with more questions than answers, more uncertainty and more anxiety.
“I gave up three years of my life for them to take less time than I do to get ready to go to work in the morning to come up with ‘we didn’t make a decision’. And I think that if they had say, if I had been waiting there for at least a day and a half, I would have at least known that they argued it and thought about it well, but that they just reiterated to me the fact that they were confused, manipulated, and then told, look, you don’t have to choose.’ – Participant 2, Piecing Together Puzzles, Prof. Vanessa Munro
The commitments we’ve seen across the Political spectrum in the last week are welcome, encouraging, and the product of years of survivor activism and advocacy.
Commentators are right to point out that ending Not Proven alone will not address all of the issues that survivors experience in the justice system and beyond, far from it.
But if we are a country that values compassion and justice, then it’s time to End Not Proven.
At Rape Crisis Scotland we spend a lot of our time calling for compassion. Usually this is from the institutions and organisations that respond to survivors directly – the Police, Crown Office and health services for example – but as necessary Covid 19 restrictions continue to dominate our lives there’s been a shift in the public conversation that needs a closer look.
Our work at Rape Crisis is rooted in decades of working with and understanding trauma, and we can say with certainty that this pandemic has tested our endurance in a way that few of us have experienced before.
It is understandable that, after almost a year of living in a state of heightened fear and anxiety, many of us are feeling tense and at the end of our tether. Recent calls to our helpline have indicated that many are feeling the strain of this more than ever before, but also that legitimate anger and frustration is boiling over and scalding those it touches, including survivors. Rather than being targeted at those institutions that are supposed to protect all of us, wrath is directed at young people, people taking public transport, meeting a friend for a coffee and a walk – as though this is not a vital lifeline for many in times of isolation - and people not wearing masks.
Evidence shows that by and large people are adhering to the rules and making decisions about this based on minimising risk. Most of us feel bound by a sense of collective social responsibility, yet the few people who are flagrantly breaking the rules continue to be sought out and splashed across the front pages, decision makers are pressed on what more can be done to punish the minority who defy guidance and people take to Twitter to lambast those they judge to be wrong.
The early days of ‘we’re all in this together’ seem far away now, bitterness too often dominates and at a time where resilience is at an all-time low, the damage that the public conversation and peer policing is having on all of us, and especially on survivors, is worrying.
Take masks for example; some recent calls to our helpline have come from survivors legitimately exempt who have been challenged by employers, peers and in public places, despite guidelines clearly setting out that if a mask makes you feel trapped, claustrophobic, panicked or anxious then you do not have to wear one. Imagine for a second how that confrontation might feel to someone in that position.
In Scotland you are not required to ‘prove’ your exemption – though there is a card available for people who do wish to carry one – which also means you do not have to disclose the reason why you are exempt. This is absolutely right – people with invisible illnesses should not be forced to disclose their condition(s). Similarly, survivors of rape should not have to disclose their trauma to meet the illegitimate threshold of self-appointed mask monitors.
The impact of this on the climate we all must live in is severe. Far from the opportunity to breathe in the fresh air we all need to survive, for many leaving the house has become fraught with danger – danger of catching the virus, of unknowingly spreading it and of being met with hostility for not wearing a mask. Interactions are strained, gazes are averted and isolation is compounded as our connections fade. We know of survivors who haven’t been able to leave their houses – even for essential reasons like getting shopping, picking up prescriptions or doctor appointments. It doesn’t have to – and it should not – be this way.
These are hard times – it’s wearing, and difficult. In good faith we do understand that aggressive demands may be the result of fear and living through grief. Trauma can influence behaviours in many different ways and so many of us are struggling, isolated and desperate. We understand the urge to lash out - but demands for accountability must be targeted at those with power.
All of us must do our bit – and despite the headlines the evidence shows that the vast, vast, vast majority of us are. Let us try to trust in that and reach out with compassion, not suspicion, and let others in our communities go about their day knowing that not a single one of us wants this to last even a second longer than it must.
Below is a letter - shared with the consent of a helpline caller - received by Rape Crisis Scotland, shared in the hope it may encourage others to reach out for support.
"Over the past wee while, I’ve reflected a lot on the conversations we’ve had and really want to express just how substantial your impact has been.
I often wonder if things would be different, more so easier now, had I sought out support earlier. I don’t think I was in the right headspace to address what had happaned though. Past reactions had been so negative that my perception, surrounding these experineces, was distorted. An unhelpful narrative had been set, making trusting others, even those with good intentions, impossible. Strangley, in spite of the many challenges lockdown has brought, I believe now was the right time for me to finally reach out.
I can’t remember how I found out about your helpline, however, I do recall being highly sceptical, not anticipating anything positive to follow. If no-one had believed me before, why would now be different? Honestly, I waited, and at times still do, for you to tell me it was my fault or that I shouldn’t be calling. That I was wasting your time. I know now that’s not something you would ever think or say. You really aren’t going anywhere. You genuinely are glad I called. You really do believe me. Despite my frequent attempts to evade topics; underplay feelings; and long stints of sitting in silence (or better yet tears), you always sat there with me. You promised you would be there for as long as I needed and it’s clear now you mean it.
I still feel rubbish about what happened. I know the past can’t be erased so these feelings will never be fully gone. However, I now have moments where I do believe it wasn’t me and it didn’t happen because I was a bad person or deserving of such treatment. You helped me see that. Previously, I had never understood what good could come from digging up the past, making long-term support seemingly pointless. Although I had heard countless times, that with support, things do get better and people do recover, it’s not something I actually believed. After speaking to you, I not only trust the process, but at times can see a light at the end of what has been a very long and dark tunnel. The future doesn’t seem as frightening anymore.
You told me I was strong. You told me I was good enough. You told me I didn’t need to be anyone other than myself to be deserving of kindness and compassion. You won’t ever know how much that means. It’s clear to me now, that independent of how long it’s been and how much or little I want to say, you will always be there so I don’t have to take this journey alone and that’s nothing short of incredible.
Thank you for always listening; for giving me so much time; and helping me find the courage to tell my story the way I want to. Thank you for never rushing me or turning me away. You saw I was worthy long before I did. Thank you for always treating me with respect and speaking to me like a real person and not just some damaged thing. Really, just thank you for being safe."
The Rape Crisis Scotland Helpline is open every night from 6pm - midnight. Please know we really do want to hear from you:
Call: 08088 01 03 02
Text: 07537 410 027
Survivors of sexual violence and the workers who support
them are no strangers to adversity.
The roots of Rape Crisis in Scotland sprang out of a determination to overcome the worst of human experience, and this most adaptable and resilient of movements has known many challenges over the four decades and more of its existence. The current pandemic is in many ways simply the latest in a very (very) long line of large-scale barriers faced by Rape Crisis services, and the pragmatism, positivity and refusal to bow to circumstance so clear in the arrangements introduced so swiftly this year by centres and the national office to minimise its impact on people looking for support (and maximise their opportunities to access this) echo some of the earliest impulses of our movement.
If the past year has offered any positives at all, one of them is certainly an opportunity for reflection. And in many respects, what this reveals is that in order to find our way forward it can help to look back. In the darkest days of 2020 it can make such a difference too, to remind ourselves just how far we’ve come. In the voices of the sisters who went before us, there is much that resonates with our own experiences, and the challenges we face in work that can change lives for the better – and sometimes even save them.
For most of us hope is not a word that we would strongly associate with 2020 and yet never has it been so important that we look for it and where it does appear, we hold onto it tightly.
But hope alone is not enough. It must be partnered with action, accountability and underpinned by a belief that change is possible. For the women who fought before us and for all those who will follow, we have to hold firm in our belief that the injustices and inequalities that run throughout our society are not inevitable and – with hope and perseverance – will end.