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Fair comment?

Fair comment?

On 19th January Scottish Legal News published a piece by Brian McConnachie QC in which he accused Rape Crisis Scotland of having been irresponsible in the way we had commented on the recent civil damages case pursued and won by Denise Clair against rapists David Goodwillie and David Robertson.

We asked for a right to reply to these claims, and sent SLN a detailed account of our response to this case and why we believe it to have been both measured and justified. They refused to publish it, saying it was ‘too political’. Our piece is below. What do you think?

At Rape Crisis Scotland, we support survivors of sexual violence, and campaign for improvements in responses to sexual offences. This dual role requires us to strike a careful balance in how we speak publicly about issues around sexual violence, to ensure we communicate key concerns without unduly alarming survivors of sexual violence. This is particularly the case in relation to the criminal justice process, and we take this responsibility seriously.

Last week saw the outcome of the first civil action for rape since 1926, in the case against David Goodwillie and David Robertson. Denise Clair, the pursuer in the case, saw a criminal prosecution against Goodwillie dropped by the Crown in 2011. Lord Armstrong found that on the balance of probabilities Goodwillie and Robertson had raped Denise Clair while she was incapable of consenting through intoxication. Rape Crisis Scotland welcomed the verdict as a landmark case which could widen access to justice for rape survivors, by giving another option where they feel let down by the criminal justice system.

It is important to be clear about what rape survivors are seeking in considering civil action. In our experience, one of the hardest things for rape survivors to come to terms with is a lack of justice. In considering the possibility of civil action, what rape survivors tell us they are seeking is not money but recognition that what happened to them was rape, and was wrong.

New justice figures were released by the Scottish Government on the same day as Lord Armstrong's judgment in the civil action against Goodwillie & Robertson. These figures showed a fall in the numbers of prosecutions for rape and attempted rape and a 16% drop in convictions.













It is little wonder that rape survivors are considering the possibility of civil action. Survivors tell us how devastating it can be to be informed that their case is not to be prosecuted. The most common reason they are given in these cases is lack of corroboration.

If we do see more rape complainers turning to civil justice when they feel let down by the criminal justice process, there are key issues that must be addressed. The first is the availability of civil legal aid - if legal aid hadn't been made available to Denise Clair, it is very unlikely she would have been able to pursue the civil action. Accessing justice through the civil justice process will be completely unattainable for the vast majority of rape complainers unless legal aid is made available.

A further important issue relates to the degree to which key protections which exist for rape complainers in the criminal justice system are in place within civil justice. Can complainers retain their anonymity? There is no legislation in place in Scotland which protects this anonymity; it is respected by the media by convention in criminal cases. Prior to the recent case, there had been no civil actions for rape in living memory. What this meant for Denise is that there was no clarity about whether or not the media would respect this anonymity.

At the time Denise was considering civil action, Rape Crisis Scotland wrote to the editor of every major paper published in Scotland to ask if they would protect Denise's anonymity should papers for a civil action be filed. We received a mixed response, and Denise took the very difficult decision to waive her anonymity. This would not feel like an option for many people. There is also the question of cross examination of the rape complainer by the defender in the action, which is not allowed in criminal trials, and in our view is not appropriate in any circumstances in sexual offence cases. Lord Armstrong took the view in this case it was not appropriate for Denise to be cross examined directly by Goodwillie when he was initially representing himself. If it is likely that we will see more civil actions for rape - and we do think this will happen - it is important for these issues to be considered by the Scottish Government in the relatively near future.

As much as Denise Clair welcomed the verdict in the civil case, she was clear that it was not the form of justice that she would have chosen. Goodwillie and Robertson, although judged to be rapists, will not face a prison sentence or be placed on the sex offenders register. Denise has stated publicly how let down she feels by the criminal justice system. This is a sentiment echoed by many, many survivors we speak to. We do consider that the Crown have questions to answer about their decision, at a relatively late stage, to drop the criminal prosecution in Denise's case, and possibly more generally about their approach in cases where someone is incapable of consenting. Reflecting on the very small proportion of reported rapes which result in a prosecution, there is a clear argument for looking again at the requirement in Scots law for corroboration, which disproportionately affects crimes of rape and domestic abuse.

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