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Speaking Truth To Power - The Survivor Reference Group

A blog to mark the publication of the Survivor Reference Group Initial Report.

Last week we sat in a room in Glasgow and as sunshine poured in through the windows survivors delved into the details of where the justice system in Scotland had let them down. These conversations aren’t unusual for us at Rape Crisis Scotland – justice is one of our key priority areas – but what made this conversation out of the ordinary was that looking on and listening in were Justice Secretary Humza Yousaf and the Lord Advocate James Wolffe QC.

It was a meeting of power, though of very different kinds. Where the Justice Secretary and Lord Advocate have both a great deal of responsibility for justice in Scotland and power in terms of how this is – and is not – delivered, survivors were there to speak truth to it. In doing so with strength, courage and vulnerability, each of them showed the power of stories and of speaking out to effect change.

It can never be right that the process of seeking justice following sexual violence in Scotland is described by some as worse than the assault itself. We know that it is never going to be easy, but we also know it doesn’t have to be this hard.

The Jamal decision: significant new appeal judgement on corroboration of penetration in rape cases

Scales of justice picture

In the recent case of Jamal v HM Advocate [2019] HCJAC 22, the High Court decided that an allegation of sexual assault could corroborate an allegation of rape despite the fact that only the rape charge involved an allegation of penetration. This is an important decision which may reduce the extent to which the corroboration requirement is a barrier to bringing prosecutions for rape in some cases.

The Jamal decision

Jamal was convicted of three sexual offences: a sexual assault committed against one victim (“CQ”), and a rape and a sexual assault committed on different dates against another victim (“KL”).

2.8 wasted years and grief that I will carry forever

It’s been one month since the end of my rape trial and 2 years and 10 woman looks downmonths of me waiting for it to be over, however, it’s never really going to be over because, in the end, there was no resolve.
The end result was the Not Proven verdict.

[Photo by Aricka Lewis on Unsplash]

When I left the court room after the closing statements the only real update I could give to my friends and family is that if the man who did this did not end up in jail then really, no victims of sexual assault stand any sort of a chance in the justice system - and that means we continue to live in a broken society where sexual assault continues to be rife. I knew the chance of conviction was low but it was none the less traumatising to witness and experience first hand the level of impunity.

Corroborating lack of consent in rape cases

At Rape Crisis Scotland, we know that many people freeze during a traumatic Frozenexperience such a rape meaning that there is often little or no physical injury.

The Lord Advocate’s Reference in 2001
clarified that force was not required to prove rape (it also removed the peculiar anomaly that someone who was sleeping couldn’t be raped and would instead be prosecuted for clandestine injury). However, in a legal jurisdiction which requires corroboration of the key elements of a crime, there can be significant challenges in proving lack of consent in rape cases.

Since the Lord Advocate’s Reference, the law has developed to recognise the role of distress as a means of helping corroborate lack of consent. This is not, however, without its challenges. Reactions to rape can be counter intuitive: many people don’t display visible distress or disclose what has happened straight away.
It is not uncommon for survivors to tell no one who has happened, and to try to carry on their lives as normal, for hours, days, weeks or longer.

This creates an intrinsic difficulty in using complainer distress as a means of corroborating lack of consent.

Scottish justice system places a higher value on Rolex watches than on raped women and children

Guest blog by @giantyellowbumblebee (Twitter) justice

The Gleneagles armed robbery case of two men stealing mo
re than £500,000 worth of luxury watches from a boutique at the five star hotel caught my attention due to the high sentences given: totalling 29 years between 2 men; 18 years and 11 years.

A Defence lawyer on Radio Scotland said this was due to the 'high value' of the crime and because it was 'violent in nature'. A discussion evolved with John Beattie citing rape case sentencing of five years for a perpetrator who raped a women who was sleeping, compared with the high sentencing given in this armed robbery. The Judge sentencing in this case stated the criminals carried out 'an act of serious premeditated criminality'.