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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.

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.

In this context, the recent ruling from the appeal court is welcome.

In this case, a woman was raped by Allan Ferguson after a party in someone’s home, but didn’t tell anyone for 30 hours, when she telephoned a friend and was so distressed she had difficulty speaking. This is a scenario which is very recognisable to anyone with experience of supporting rape survivors. Following his conviction, Allan Ferguson lodged an appeal, arguing that her distress was too remote to corroborate lack of consent. The appeal judges rejected this argument, holding that there was no fixed interval beyond which distress could corroborate lack of consent, and that it was for the jury to decide if the distress was caused by the rape:

“If a jury accepted the evidence of distress, and that it was the rape which caused it, the evidence of the complainer’s physical state, independently observed, corroborates the complainer’s account of lack of consent. The link is pre-eminently a question of fact for a jury to resolve”

However, what we know is that juries in rape trials can be influenced by myths around rape.

In his recent review in Northern Ireland, Sir John Gillian identified rape myths as undermining the notion of a fair trial. There is significant evidence from research using mock juries about the impact preconceived notions about how people react to rape can have. And in fairness, why would members of the public, selected at random to sit on a jury in a rape trial, know that reactions to rape can be counter intuitive?

The Scottish Government legislated in 2016 to introduce jury directions to inform jury members where relevant that lack of physical injury and delayed disclosure did not in itself mean consent. In practice, however, these jury directions come at the very end of the trial, after jury members have heard all the evidence in the case and arguably may already have come to a view.

It is clear to us that as the law develops (positively) in relation to rape and consent, much more needs to be done to consider jury (public) attitudes to rape. Otherwise rape survivors in Scotland may well continue to feel very let down by the criminal justice system.