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The Jamal decision: significant new appeal judgement on corroboration of penetration in rape cases
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
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 experience 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.
Scottish justice system places a higher value on Rolex watches than on raped women and children
Guest blog by @giantyellowbumblebee (Twitter)
The Gleneagles armed robbery case of two men stealing more 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'.
A case for human rights
At Rape Crisis Scotland we are sometimes in the position of being critical of the approach of some lawyers, specifically in relation to the cross examination of rape complainers in court. In the past months however we have been impressed by the approach of a number of lawyers to what we consider to be a significant human rights issue.
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