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26 November, 2018
Call to give rape victims access to independent lawyers to grant them justice
This article first appeared in The National online on 25 November 2018.
Ahead of a joint debate with The Faculty of Advocates and Rape Crisis Scotland on Wednesday 28th November, Karin Goodwin examines the arguments in favour of rape complainers having legal representation in court.
The case for rape complainers to have independent legal representation is being made by Simon Di Rollo QC, who has acted on behalf of women in two landmark civil rape cases.
In the first, last November, two professional footballers were found to have raped a woman after a judge ruled she was “incapable of consenting” due to the effects of alcohol. David Goodwillie and David Robertson were ordered to pay damages of £100,000 to Denise Clair.
Last month Di Rollo – working alongside lawyer Sarah Crawford – represented a former St Andrew’s University student known as Miss M after a criminal case in 2015 resulted in a not proven verdict.
A sheriff in Edinburgh found that Stephen Coxen, 23, from Bury, Greater Manchester raped the then student at St Andrews University while she was too drunk to consent. Miss M was awarded £80,000 in damages.
Di Rollo is being backed by Peter Duff, a criminology professor at Aberdeen University, while Rape Crisis has said the idea should be considered as part of a range of measures that would allow better access to justice.
Currently only 39% of rape cases that go to trial result in a conviction, which is not only the lowest conviction rate for any crime type, but also much lower than in England and Wales, where 57% of rapes prosecuted lead to a conviction.
It is claimed that because the Crown is prosecuting in the public interest, rather than in that of the person who has been raped, it sometimes fails to offer the victim protection, with details of sexual history – which can prejudice juries – going unopposed, as well as hostile lines of questioning.
The suggestion of independent advocates will be heard in a debate hosted by The Faculty of Advocates and Rape Crisis Scotland on Wednesday, where di Rollo will speak for the motion that “prosecution in the public interest cannot deliver justice to rape complainers unless they have independent representation”. Murdo Macleod QC will speak against.
Di Rollo, said: “We have a very high attrition rate [the process by which the number of the cases initially reported to police do not proceed] – and the conviction rate for rape is significantly lower than it is in other countries. “So there has to be a case for looking at a different way of doing things. Rape has a devastating impact on a individual.
“The Crown has a duty to prosecute in the public interest but it may take a neutral position on some issues. You have disclosure of medical records in rape trials, sexual history. There is a need for [rape complainers] to be independently represented.”
Professor Peter Duff said that the adversarial nature of rape trials were one reason some women may decide not to take the case further.
“It’s not the job of the prosecution to look after the victim,” added Duff. “If they want to use sexual history evidence the prosecution rarely opposes this.” Judges, he said, were unwilling to be seen to be compromise their neutrality by refusing the request. “That means they need to face embarrassing demeaning questions and the jury could be prejudiced against them. The victim often has no voice.”
He said the recent case in Ireland, where a man was acquitted of raping a 17-year-old girl by a jury at Cork’s Central Criminal Court after her lace thong was held up in court – and the defence suggested she was “open to being with someone” as a result – showed how badly complainers could be treated.
In 2001 Lindsay Armstrong, 17, from New Cumnock in Ayrshire, took her own life after being made to hold up her underwear in court. Sandy Brindley, chief executive of Rape Crisis Scotland, said: “Most reported rapes never make it as far as court. For rape complainers whose cases do get to court, the experience can be very traumatic.
“We supported one woman who was still breastfeeding at the time of the trial, and she was so traumatised afterwards that her milk completely stopped. She told us ‘that’s just another thing he has taken away from me’.
“Many women describe the experience of giving evidence, and particularly of being cross examined, as degrading and humiliating. Some rape survivors tell us that even where there has been a conviction that they would never do it again.”
She said that the idea of independent legal representation was worth considering as it would help rape victims feel more in control of the process and reduce the possibly of secondary victimisation.
Other reforms under consideration include the possibility for all rape victims to have their evidence pre-recorded in advance of trial, an idea raised earlier this year by Lord Carloway, Scotland’s most senior judge.
Rape Crisis has also called for the not proven verdict to be removed as an option for juries, which it says is too often used as an “easy get out”. Training is also needed to address jury attitudes, claimed Brindley.
In a report released last week in Northern Ireland, retired judge Sir John Gillen stated that he believed that rape myths undermine the notion of a fair trial, and called for proactive measures to tackle this.A Crown Office spokesperson said: “The Crown is committed to the effective, rigorous and fair prosecution of sexual crime and to assisting and supporting victims and witnesses through the prosecution process.
“The Crown’s Victim Information and Advice staff are trained to provide information to victims of crime about the prosecution process and to help them make contact with sources of support. We are committed to working with partners in the Criminal Justice System to improve the service provided to victims. We support the principles in the Victims and Witnesses Act 2014 which makes clear the importance of the interests of victims.”
A Scottish Government spokesperson said: “Scotland’s justice system should always take the needs of victims of sexual crime fully into account, and we are working with a range of partners to ensure that this happens across the board. Last year we introduced new legal rights that allow complainers whose sensitive records are being sought access to legal aid to oppose such a request.
“At the same time we have funded research to help build the evidence based on people’s experiences of the justice system to support particularly vulnerable people to give their best evidence.” It has also made further investments in advocacy services, it added.