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On Covid 19 and Courts - A Statement From Sandy Brindley

Rape Crisis Scotland welcomes the advances that are now being made to try and resume the business of the Scottish Courts, and in particular the steps now being taken to try to resume jury trials in Scotland. In this connection Rape Crisis welcomes the fact that the Justice Committee of the Scottish Parliament is to begin to hear evidence on this matter on 19 May 2020, and that Lord Justice Clerk’s Jury Trial Working Group had its first meeting on 14 May 2020.

As Chief Executive of Rape Crisis Scotland, I wish to make a statement on the issue of the resumption of jury trials from the perspective of those who have experienced sexual crime.

Taking part in criminal proceedings brought against one’s rapist or sexual offender is profoundly challenging for every victim. It is traumatic to be forced to relive the painful experiences from the past and to open them to more or less public scrutiny. It is recognised by all of those professionals who deal with these cases that proceedings should be concluded as soon as the administration of justice allows. The prerequisite of promptness of the proceedings is therefore an aspect of victim protection - ever more so in cases of heightened vulnerability of survivors of rape or domestic abuse.

It is in this context that I wish to express certain concerns about the resumption of jury trials. As a starting point, it is essential that the decision to proceed with the resumption of jury trials would have to be made on the basis that an effective jury system can be put in place which;-

(a) is likely to avoid the risk of cases collapsing and complainers of sexual violence requiring to give evidence again and,

(b) will function at an effective level.

In relation to (a) - the risk of a case collapsing. I suggest that before approval is given to any new way of jury trials operating, there requires to be a body of evidence available that permits a conclusion to be reached on the level of risk of trial collapse. I suggest that the risk must be capable of being categorised as minimal in the prevailing circumstances of Covid 19. There are many factors that are relevant to this consideration, however, the most obvious would seem to be the potential impact on individual jury members of the concern that they may have about spending time in the company of others who may be infected with the virus, or who may be associating with others who are infected, where it is recognised that those carrying the virus may be symptom free. The more difficult it is to get jurors to attend, or to ensure that they continue to attend without becoming contagious, the more the risk of the case collapsing increases. If one juror is tested positive or acquires symptoms it is likely that all who have been in contact with that juror will have to isolate. This may well mean that any time a juror tests positive the whole case is abandoned. The more people involved with the process the greater this risk becomes.

In relation to (b) - the level of functionality is also a critical consideration. I say this because of the impact that delay in cases proceeding and concluding has on complainers of sexual crime. From my experience at Rape Crisis Scotland I understand this has an intolerable impact - particularly on complainers of serious sexual crime - who are by their nature amongst the most vulnerable category of witnesses who come before the courts. I am sure this is well understood by all professionals who take part in these proceedings and I am supported in this by many scholarly articles and expert opinion on this subject. Any jury system proposed and approved of has to deliver a meaningful result in the sense that it is more than a token gesture and capable of providing a reasonable number of trials over a reasonable period of time.

If in fact there is no practical way of recommencing jury trials capable of functioning at meaningful and effective level, then it is only reasonable to suggest that some change has to be made to the way in which cases, particularly cases involving serious sexual offences, are conducted. The option of doing nothing is unacceptable and I therefore implore those involved in this process to consider other options alongside the current process that the Scottish Parliament and the Lord Justice Clerk’s working group are concerned with. The UK signed the Istanbul Convention in 2012 to signal the UK’s strong commitment to tackling violence against women and girls, and under Article 49 signatories to the Convention require to take the necessary legislative or other measures to ensure that judicial proceedings in relation to all forms of violence covered by the scope of the Convention are carried out without undue delay while taking into consideration the rights of the victim during all stages of the criminal proceedings. Further, Scotland has a positive procedural obligation inherent in Articles 3, & 8 in association with Article 13 of the ECHR to enact criminal law provisions effectively punishing rape and to apply them in practice through effective investigation and prosecution. The prerequisite of promptness of the proceedings is an aspect of victim protection and therefore, where no or an inadequate number of jury trials dealing with serious sexual offences are capable of proceeding on indictment, then I do suggest that the Scottish Government are obliged to consider a different way of proceeding consistent with their legal obligations.

In this context I also raise the the time requirements of the Convention on the Rights of the Child 1989 (United Nations) and the Beijing Rules. Lord Reed in the case HMA v P & SM 2001 SLT 924 explained the consequences of prosecutorial delay and the particular impact this has on cases involving children. This must be seen to have a broader application to all child complainers and witnesses. Indeed, what he said at paragraph 12 of his judgment is of critical importance.
“[12] Where a child of 13 is accused of committing a serious offence, it is plainly desirable that the child should be brought to trial (if criminal proceedings are considered appropriate) as quickly as is consistent with the proper preparation and consideration of the case. For a period of two years to elapse between the child's being charged with the offence and the child's being placed on trial has a number of undesirable consequences. Without attempting to list them exhaustively, the following may be mentioned. A child of 13 may be very different from the same child when he or she is 15 years old, both in terms of physical development and in terms of maturity and understanding. If the trial is to be held before a jury, as in the present case, the jury may have a very different impression if a 15 year old boy is in the dock, from the impression which they would have had if they had seen the same individual when he was 13. It may be much more difficult to assess the state of a child's understanding, when he was 13, of sexual matters and sexual relationships, if the child is not placed on trial, and is not able to give evidence, until he is two years older. For the child himself (or herself), a period of two years awaiting trial will form a significant part of childhood, and more particularly of the period of secondary schooling, which cannot be compared with the significance of a two year period to an adult. If the 13 year old child is in fact guilty of an offence and requires the sort of reformative measures which disposals in respect of child offenders are intended to include, then again it is undesirable that the initiation of such measures should be delayed by a period of years. Reverting to the aims of the “reasonable time” requirement, for a period of two years to elapse before justice is rendered in a case involving a child of 13 is for these reasons liable to jeopardise its effectiveness and credibility; and for the child to remain for that period in a state of uncertainty about his fate may have especially harmful consequences. I have mentioned matters which relate to the child accused, because such matters are particularly relevant in the context of art 6 (1); it is scarcely necessary to add that prolonged delay in bringing a case to trial may also have seriously harmful effects upon a child complainer, especially (as in the present case) in a case of alleged rape.”

It is in this context that I note that within the submissions available online from both the Faculty of Advocates and the Law Society there has been no real analysis done and no valid or reasoned criticism advanced as to why a Judge sitting alone, or a panel of three Judges could not conduct cases of serious sexual crime prosecuted on indictment. Indeed, one of the most serious, complex, high profile and difficult solemn trials ever prosecuted under Scottish jurisdiction was conducted without a jury under the scrutiny of the lawyers and the international media, and no valid or reasoned criticism of the ability of the judges to perform the functions of assessment and analysis of evidence was raised. Further, no criticism has ever been advanced institutionally of the work that Judges in the Court of Session have undertaken for centuries when they have adjudicated upon cases which involve all of the traditional assessments expected of jurors or of sheriffs who undertake summary work and regularly impose periods of imprisonment and take decisions based upon the credibility and reliability of witnesses.

I also note that no consideration has been given to the possibility of serious sexual crime cases being considered in a separate category and, that whilst jury trials may be able to proceed for other cases, sexual offence cases should be dealt with either by a single Judge or a three Judge panel reducing the particularly acute risks associated with the case collapsing and the profound trauma this would undoubtedly bring to the victims of serious sexual crime.

I therefore propose that in tandem to the work the Justice Committee and the Lord Justice Clerk’s working group are undertaking in relation to considering the practicalities of recommencing trials by jury when lockdown restrictions are relaxed, consideration is also given to the way in which the prosecution of serious sexual crime can be accommodated within our system of justice that respects both the accused’s and victim’s rights during this global pandemic. Not to do so runs the real risk of the serious and important issues I responsibly raise are not properly addressed.

I would also wish to make one other short point. The issue of reduced jury sizes is a matter that is of some concern to Rape Crisis. There is a real quality of justice argument and possible ECHR issues. In this context, bearing in mind the case law and psychological analysis that comes from America where the Supreme Court has refused to authorise the use of a 5 person jury it is an area that requires detailed and careful legal analysis. I understand this is one of the options proposed by the Scottish Government ( a jury of 7 with a majority of 5) and to some extent supported by the Law Society ( only in the Sheriff Court where they suggest 5 jurors) and the Faculty of Advocates.

How to Report Sexual Assault Trials Responsibly

By Karen Boyle (University of Strathclyde) & Brenna Jessie (Rape Crisis Scotland)

NB: These guidelines supplement legal requirements in relation to the reporting of rape and sexual assault cases, and focus on ensuring reporting does not legally but inappropriately lean towards a guilty or not—guilty narrative whilst the trial is ongoing.

For more general guidance on reporting on (men’s) violence against women, see Zero Tolerance’s media guidelines. If you would like further advice on these issues, see the experts list and additional resources listed at the end.

The New York trial of Harvey Weinstein has brought unprecedented global coverage to the criminal prosecution of rape and sexual assault over the past two months. For those of us in the UK – where much tighter legal restrictions are in place for reporting sexual assault trials - the level of detail in the media has been dizzying. There has been some phenomenal reporting in the Weinstein case: let’s not forget it was the investigative journalism of Jodi Kantor, Megan Twohey and Ronan Farrow and the bravery of the women who spoke to them that brought Weinstein’s abuses to light. At the same time, much of the media reporting of the trial has been sensationalist and a cause for concern for those of us working to support survivors, challenge myths about rape and sexual assault, and work towards gender equality. At Gender Equal Media Scotland, this has led us to take stock of what we already know from our work and research in this area, and think about what responsible reporting of rape and sexual assault trials looks like.

Media organisations reporting on ongoing trials will be rightly conscious of ensuring the accused has a fair trial. At the same time, research on media reporting of sexual assault has consistently demonstrated that what passes for “fair and accurate” reporting is often subtly biased against complainants and witnesses.

Responsible reporting means more than giving equal prominence to defence and prosecution arguments: though of course that’s important. It means ensuring the language used does not implicitly endorse either a guilt or innocence narrative and avoiding replicating gendered stereotypes, particularly in the characterisation of the accused, complainers and witnesses. A principle underpinning all reporting on sexual assault trials must be that the presumption of the accused’s innocence does not mean a presumption that complainers and witnesses are lying.

Responsible reporting of rape and sexual assault trials is also alert to the way in which these reports reverberate beyond the courtroom. The audience for sexual assault trial reporting includes potential and actual perpetrators and victim/survivors. How these cases are reported can make it more – and less – likely that potential perpetrators reflect on their actions, that incidents are reported to the police, and that victim/survivors seek support.

The Weinstein verdict may be in, but there will be other high-profile sexual assault cases in the future. At Gender Equal Media Scotland we have therefore identified eight principles for responsible reporting. These are accompanied by suggested sources and additional resources (points 9 & 10). An abbreviated version of these principles for quick reference is available here.

We hope that these can become embedded in the way we think about the reporting of all sexual assault trials.

1. A sexual assault trial is about whether the prosecution can establish, beyond a reasonable doubt, that the accused committed the crimes he has been charged with.

This is an obvious point but it’s worth repeating.

When the accused is a public figure, there is a tendency for reporting to emphasise the implications of the trial for the accused and the organisations and people associated with him. Men in positions of power are often held up as representatives of the organisations they lead. This can lead to coverage which diverts attention from the specific charges against the accused.

Particularly in cases involving assault within workplaces or public institutions, the relative power of the accused will always be relevant and there will likely be broader questions emerging about workplace and institutional cultures. It is appropriate, indeed necessary, to consider these. However, in coverage of the trial itself, it is important to remember who is on trial and what he has been charged with.

  • Remember who is on trial
  • Don’t present the trial, or its verdict, as a metaphorical trial about something else.

Broader issues are most likely to be covered in reporting leading up to a trial and, in particular, in its aftermath. Read on for advice on handling these issues.

2. Remember the specific charges

The accused in a sexual assault case is not charged with sex so phrases like “sex claims” or “sex case” are inappropriate.

  • Report the charges accurately.
  • Don’t use euphemisms like sex, kissing, touching or fondling to describe sexual assault charges.

3. Give equal weight to prosecution and defence during the trial.

Because of the nature of a criminal trial, it is likely that there will be periods during the trial where either defence or prosecution dominate proceedings. This is inevitably reflected in media reporting such that the question of balance might be weighed over the course of a trial rather than in a specific report.

Nevertheless, where a report emphasises the defence case, the charges should always be restated with the same prominence as given to the accused’s plea in reports focusing on the prosecution case.

  • Balance may be weighed across the course of a trial.
  • However, individual reports should still include both the charges and the accused’s plea.

We recognise that achieving balance in reporting on rape and sexual assault trials is complicated by the need to ensure the anonymity of the complainers. This tends to mean that where the accused appears as a fully-fleshed out individual in reports (particularly where he is already a well-known figure), complainers can seem like stock characters.

This can be partially addressed by not giving unnecessary detail about the accused if you can’t provide similar detail about the complainers: this might include details of who accompanies the accuser to court, for instance, or information about his family or social networks which are not pertinent to the case.

  • Don’t give unnecessary detail about the accused where similar detail cannot be given to humanise the complainer.

Where profiles or portraits of the accused run during or immediately following the trial, care should be taken to ensure that complainers are not blamed (implicitly or explicitly) for consequences to the accused which flow from the charges and/or verdict. These might include impact on reputation, job opportunities, and personal relationships.

We recognise that this information can be relevant to reporting, particularly when it is mentioned in court or following the verdict. However, it is important to remember that it is the accused’s alleged behaviour – and the judgement that there is sufficient evidence that he has a case to answer – that has led to this point. Any discussion of impact on the accused should also be balanced with a consideration of the impact of criminal proceedings – and of sexual assault - on victims, survivors, complainers and witnesses. This is likely to be of particular relevance in the lead up to a trial, as well as in post-verdict reporting.

  • Avoid presenting the accused as a victim of the complainers’ actions or statements.
  • Use experts who can provide context and commentary on the experiences of complainers in sexual assault trials, particularly in post-verdict reporting.

4. It is the job of the jury to decide if there are perpetrators and victims. Therefore, media reports should use comparable terms for the accused and those giving evidence against him.

As the job of a criminal trial is to ascertain whether or not there is evidence “beyond a reasonable doubt” that a crime took place, it is appropriate that terms like “victims” and “survivors” are used only with qualification (e.g. alleged victim). However, if comparable terms are not used for the accused (e.g. alleged perpetrator), this creates a subtle bias against those testifying for the prosecution. Whilst the terms “accused” and “complainer” will necessarily be used in reporting on proceedings in Scottish courts, try to avoid phrasing which can portray the accused as the victim and complainer as the as the aggressor.

  • Accused and alleged victim are not equally weighted terms.
  • Avoid accused/ accuser: this portrays the accused as the victim and the witness as the aggressor.
  • Instead use, accused and witness; or accused and complainer.

5. It is the job of the jury to decide the relative value of the accounts given in court. Therefore, media reports should use comparable terms to describe the testimony of both sides.

Research has repeatedly shown that media reporting of court testimony in sexual assault cases rarely accords equal value to the defence and prosecution. Instead, it often betrays an implicit bias towards the accuser, his legal team and witnesses by describing their statements in neutral or assertive terms whilst subtly casting doubt on the prosecution. For instance, the accused, their teams and witnesses said, stated, asserted, denied; whilst prosecutors and their witnesses alleged, accused or claimed. It is important to remember that the charges against the accused are made by the prosecution not by an individual or group of individuals.

  • Avoid using allegation and alleged in relation to only one side of the evidence.
  • Fair and balanced reporting uses equivalently weighted terms: she said/ he said; she testified/ he denied.

6. Make the provenance of statements clear, including in headlines.

Responsible reporting is too often undermined by a sensationalising headline. It is particularly irresponsible to use quotations from the defence, prosecution or any of their witnesses or supporters without explicitly acknowledging the source.

  • If using a quote in a headline always use quotation marks, and clearly indicate if the statement is made by a party in the case.

7. Carefully consider the language used to describe the accused and witnesses.

There are lots of myths around rape and sexual assault. These can inflect reporting on criminal trials as well as the reporting of rape and sexual assault more broadly.

There are decades of research to demonstrate that where men are presented as credible perpetrators of sexual assault, they are often presented as inhuman: monster, sex beast, fiend, animal. This is reinforced by physical descriptions which present the perpetrator as animalistic, grotesque or ugly – something we saw a lot of in the coverage of the Weinstein case. These descriptions can reinforce the myth that men who are deemed sexually attractive do not “need to” rape or sexually assault others. Whilst these terms are far less likely to be used to describe the accused in an ongoing trial, we include them here as they can sometimes be used to refer to the outcome of other trials and so impact on ongoing trials.

There are restrictions on the use of sexual history evidence in court, but even so reporting can sometimes play into these myths: for instance, with detailed physical descriptions of a witness, or comments about her relationships, demeanour or behaviour. It is also important to be alert to the fact that descriptions of complainers over the course of a trial may compromise their anonymity.

  • Avoid describing accused or convicted men as monsters, beasts, fiends or animals.
  • Avoid physical descriptions of accused or convicted men which play into myths about sexual assault (e.g. that only ugly men sexually assault women).
  • Avoid physical descriptions of witnesses and complainers which play into myths about sexual assault (e.g. that women are “asking for it”).

We recognise that these myths are sometimes mobilised in court by the defence or prosecution and it may be relevant to report on these. However, it is not inevitable that myths about sexual assault used in court are reported on. Only some aspects of a day’s proceedings make it into news reports, so you can choose not to replicate obvious myths in full or, for instance, not use direct quotations from defence/ prosecution which deploy these myths. If you do report on these issues it is important to clearly attribute the claims and not to then reproduce them in your own descriptions of the accused or witnesses.

  • When choosing which aspects of a day’s proceedings to emphasise in your reporting, reflect on whether it is really necessary to reproduce myths about sexual assault used in court.
  • If you are reporting on the use of myths about sexual assault in court, make sure statements are clearly attributed and avoid leading with them where possible.
  • If you are reporting on the use of myths about sexual assault in court, take care to provide alternative viewpoints, whether from defence or prosecution. Post-verdict, consider using external experts who can comment more generally on these myths.

Please remember that decades of research with victims and survivors of sexual assault has demonstrated that there is no one way, and certainly no “right” way, for victim/survivors to behave. The impacts of sexual assault vary widely and a witness’s emotional state on the stand gives no indication of her truthfulness.

Finally, we recognise that all of these points are a lot more difficult to police in comments threads where commenters are also unlikely to be aware of the implications of expressing opinions which may put them in contempt of court. With this in mind we strong encourage news organisations to:

  • Turn off commenting functions for stories relating to ongoing sexual assault cases, and moderate comments on Facebook.

8. Provide links to relevant helplines.

Organisations supporting victims and survivors of rape and sexual assault experience an increase in demand for their services when there are high-profile stories in the media. Whatever the outcome of a criminal case, there are victims and survivors in your audience and the coverage of the trial may well be triggering for them. Providing links to relevant helplines can provide a lifeline.

For Scottish media, the following boilerplate statement can be used:

The Rape Crisis Scotland national freephone helpline is open nightly 6pm-midnight: 08088 01 03 02.

9. The bigger picture.

10. Additional resources

  • Zero Tolerance have useful guidelines relating to responsible reporting of (men’s) violence against women more generally.
  • Pass the Mic is a growing list of expert women of colour in Scotland who can be consulted about a range of issues.
  • Women in Journalism Scotland offer a range of resources, with an Online Members Directory coming soon.