Access to justice for rape complainers: making the connections
Yesterday saw the publication of two documents from which we can glean a great deal about the current landscape for rape complainers in Scotland.
The first was a historic judgement given by Lord Armstrong in a civil damages case brought by Denise Clair against David Goodwillie and David Robertson, which was remarkable as the only civil case in living memory for damages for rape and found in favour of Ms. Clair that the two men had raped her after she met them on a night out January 2011. Despite an initial decision to prosecute, the Crown dropped criminal proceedings against Goodwillie, and it took six years for her to finally receive justice through the civil justice process.
It is hard to overstate the significance of this ruling, which marks an important watershed for survivors. This is the case not only because it highlights an alternative route to the criminal justice system, but also because of the content of Lord Armstrong' opinion in the case. He dismissed the significance of flirting to the question of whether the woman was raped:
‘The mere fact of sexual attraction does not preclude rape.’
Significantly, Lord Armstrong made it clear that any appearance or impression of consent was rendered meaningless where someone is incapacitated through drink. He said:
‘The issue of whether there is meaningful consent arises most clearly where some expression or indication of consent to sexual activity is given. In such circumstances, if the individual is so intoxicated as to have no capacity to make free agreement, then whatever she has said or done to indicate consent does not amount to free agreement.'
The judgement in this case was published on the same day as the Scottish Government published its latest figures on the number of convictions for rape and attempted rape in Scotland during 2015/16. These show a worrying drop of 16% from the previous year. Also concerning is the fact that the number of cases prosecuted has also gone down – in 2015/16, 1,809 rapes and attempted rapes were reported to the police, but there were only 216 prosecutions, and 104 convictions.
Rape is a crime which can take a great deal of courage to report, and for someone who has taken the decision to do this to be told that their case will not proceed can be devastating. There can be little doubt that many survivors will take heart from the news received by Denise Clair at the Court of Session yesterday, with the possibility it demonstrates of an alternative route to justice for those who feel let down by the criminal justice system. We think that we will see more and more rape complainers turning to the civil justice system in their search for justice. Steps must be taken to ensure that key protections, such as anonymity and protection from cross examination by the accused, are in place within the civil justice system for these cases.
A wider question remains about why so few reported rapes make it to court. The rape survivor in the Goodwillie case has been clear that although she welcomes yesterday's judgement, she feels bitterly let down by the Crown's decision to drop the criminal prosecution. While the law is clear that free agreement to sex cannot be present where some is incapable of consenting to it through the effects of alcohol, prosecutions in these cases can be difficult to bring. Rape Crisis Scotland considers that the Crown Office could be bolder in their decision making in these cases.
Corroboration also continues to pose a major obstacle to the prosecution of rape cases as the vast majority of these cases take place in private. If rape survivors in Scotland are to genuinely have access to justice, this is something which the Scottish Government must look at again.