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Justice for rape complainers: overcoming barriers and reducing trauma

It’s twenty years since I first supported a woman to give evidence in a rape Statstrial.

At the time, I was shocked at what she had to go through, particularly during the cross examination by the defence. It wasn’t only the content or duration of the questioning from the defence, but the manner in which he spoke to her. This was a woman who I knew was very anxious about giving evidence, but she was addressed in a manner I can only describe as mocking contempt. I found it distressing to watch, so you can imagine what it must have been like for that woman to go through.

Despite considerable efforts over the past two decades to improve legal responses to rape, I am not convinced that much has changed. Rape Crisis Scotland runs a national advocacy project, with 17 dedicated advocacy workers across the country supporting sexual offence complainers through the justice process. An independent evaluation of the project published last week found that the service was “invaluable” and “life changing” for those who received support.

While sexual offence complainers spoke very highly of the service provided by the National Advocacy Project, their experience of the justice process was far from positive. Rape complainers tell us of lengthy waits for trials (it’s not uncommon for it to take two years between reporting the police and the trial, if there is one) and frequent delays, with complainers building themselves up to give what is very difficult evidence only to get a call the night before saying the trial isn’t going ahead. This can happen numerous times.

Such uncertainty about when the trial is going ahead can have a very negative impact on complainers, leading to some considering withdrawing from the process altogether. In those cases which get to court, complainers frequently describe the experience of giving evidence, and particularly of being cross examined, as being extremely traumatic. In a recent Inspectorate of Prosecution report, sexual offence complainers described the court experience variously as “the most degrading and terrifying thing”, "horrendous" and “worse than being raped”. Even where there was a conviction, women said that they would not go through the process again. And the chances of getting a conviction are not high.

Figures released by the Scottish Government last week make for grim reading. In a year where there were 1,878 rapes and attempted rapes reported to the police, there were only 251 prosecutions and 98 convictions.

It is clear that much still needs to be done if we are to lessen the trauma caused to rape survivors by the process of seeking justice, and ensure that those guilty of sexual crime are held to account. The vast majority of reported rapes never make it as far as court, and the most common reason complainers are given is lack of corroboration. Rape Crisis Scotland believes that the requirement for corroboration in Scots law requires to be revisited.

In the short term, there needs to be far greater certainty about when trials will go ahead. Ultimately, however, we consider that the recommendations in the evidence and procedure review could transform the experience of sexual offence complainers, by pre re-recording their evidence, including the defence cross examination, much closer in time to the incident, meaning they don’t need to attend court at all. This is far more likely to get better evidence than the current approach, and would be far less traumatising.

We also need to look at what happens during rape trials which leads to so many juries acquitting. There is significant evidence from research using mock juries of the role that jury attitudes can play in decision making in rape trials. The introduction last year of judicial directions to explain commonly misunderstood issues around delays in reporting and lack of physical injury was a positive step. With fewer than 4 in 10 rapes which get to court resulting in a conviction, and the disproportionate use of the not proven verdict in rape trials, perhaps it is time to consider more radical changes to how our justice system responds to the crime of rape.

Sandy Brindley

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