Rape

Question 1

Introduction for Rape question

Answer 1

The prosecution of sexual cases in the High Court has significantly increased in recent years, such cases now constituting the vast majority of High Court trials. As the number of cases has risen, they have often become more serious or complex. This pattern of growth, both as to volume and complexity, is likely to continue. However, despite this it is the number of people convicted of these offences seems to have fallen. This problem is not confined to Scotland and researchers have shown a common pattern across European countries in a rise of reporting and recording, but a fall in prosecution and conviction rate.

Question 2

Problems with the law surrounding rape trials

Answer 2

Corroboration
Rape myths
Ineffective rape shield legislation

Question 3

Corroboration definition

Answer 3

Every issue of fact in Scotland has to be corroborated by the Crown. This means there must be two adminicles of evidence that confirm or support the other.

Question 4

Why is corroboration an issue

Answer 4

Due to the nature of rape and other sexual assaults, it is suggested that corroboration is a large hurdle because they typically take place in private settings, without other witnesses to confirm or deny the accusation.

Question 5

Who says what about Corroboration

Answer 5

Cowan provides that this is a particularly onerous task as this has been taken to include the mens rea of the offence.

Question 6

Mens rea and corroboration

Answer 6

Cowan provides that this is a particularly onerous task as this has been taken to include the mens rea of the offence. It has been found that intention can be inferred from proof of corroborated evidence. This might be a less onerous task when the sexual assaults being considered are ‘forceful’, in that evidence of force plus the complainers testimony would be sufficient to pass the evidential hurdle of corroboration. However, this may present difficult when cases of rape or sexual assault arise in a non-forcible manner.

Question 7

Ways around corroboration

Answer 7

Distress corroboration is the evidence of a third party which states that complainer or the alleged victim was distressed after the incident rape or sexual assault. This distress can be used corroborate her evidence that there was no consent, when consent is a crucial issue (Smith). This distress must be soon after, two days has been accepted (Ferguson).

However, this may be criticised as this is based on a rape myth itself, that being that all victims of rape will show emotions straight after the event, in a form obvious to another person. This may be criticised as this is often not the reaction of a complainer and is based on the stereotypical “real” victim. Rape myths and their issues are discussed below.

The law has also developed rules of Moorov and Howden to aid in corroboration, however these both involve multiple charges, therefore having their limitations.

Question 8

Analysis corroboration

Answer 8

Due to the nature of rape and serious sexual assault cases, it seems they are difficult to corroborate as they are often in situations where it is the accused and the complainer alone. This makes it a high hurdle for the crown to overcome. Although developed doctrines to try and facilitate this, particularly distress, this itself is based on a common held rape myth.

Removing the requirement for corroboration should, however, enable the Crown to bring prosecutions in cases where there is a lack of corroboration but where they believe there is still enough evidence to give a reasonable chance of conviction. Critics of the move to abolish corroboration claim that it would lead to more miscarriages of justice, yet as Lord Carloway points out in his report, there is no evidence that Scotland has a lower occurrence of miscarriage of justice than other countries, despite almost every other jurisdiction having moved away from requiring corroboration. The Crown would still need to prove the crime beyond reasonable doubt – this is the ultimate safeguard against wrongful
conviction and one that will remain.

The removal of corroboration was proposed by Lord Carloway following the decision in Cadder, however this was removed from the Criminal Justice (Scotland) Bill by the Scottish Government, which was then passed to become the Criminal Justice (Scotland) Act 2016. Thus, it seems there is a reluctance to move away from corroboration. However, it is proposed here that this need not be necessary for all crimes, but perhaps those relating to rape and serious assaults.

Question 9

Rape myths - originated

Answer 9

The term rape myth gained prominence in the 1970s after Brownmiller’s discussions of misled beliefs about sexual violence and Estritch’s analysis of how some rapes were considered more ‘real’ than others

Question 10

What are rape myths

Answer 10

Rape myths are stereotypical attitudes about rape that deny, downplay or justify sexual violence.

Question 11

What are some common rape myths

Answer 11

• victim was not raped if they did not scream or fight back
• victims will show signs of distress and emotion right after the rape and when giving evidence
• victims of rape will report this straight after it happened
• false accusations are commonly made

Question 12

Why are rape myths problematic

Answer 12

They undermine women’s experiences and create a sense of violation that revictimized survivors

They are a form of victim blaming

They undermine complainers if they do not adhere to the ‘real’ victim that they are used to create

If they are used by the defence, (for example in Donegan where the complainer was subject to lengthy cross-examination and was repeatedly asked if she tried screaming at the top of her voice), they will be in the mind of jurors and this will no doubt have a strong impact on their decision making

Question 13

What legislation is in place to address rape myths

Answer 13

S288DA (provided originally in the Abuse Behaviour and Sexual Harms Act 2016) addresses the prejudices which exist in respect to delayed reporting. Judicial direction must be given to the jury of a sexual offence case to emphasise that delayed reporting does not negatively affect the credibility of the complainer

S288DB provided by the 2016 Act, requires the jury to be informed by judicial direction that there can be good reasons why a person against whom a sexual offence is committed might not physically resist the sexual activity.

These are an attempt at myth-busting

Question 14

What more could be done to target myth busting

Answer 14

Juries could be asked to give reason for their decisions. This may therefore give insight into what myths may still be prevalent in the system and are being used not to believe complainers. However, this has issues as jury of 15 people, might end up having confused and conflicting reasons alongside delays in the court process

Expert evidence could be used to debunk some rape myths, for example allowing the use of psychologists to explain why an individual may have reacted the way that they did. This is used in New Zealand

Ridding of the corroboration rule of distress as an attempt to demonstrate an understanding that all victims may act differently, and there is not a “real” way a victim acts.

Question 15

What is the rape sheild legislation

Answer 15

s274 and s275 Criminal Procedure Scotland Act 1995

Question 16

How does the rape shield legislation work

Answer 16

Character evidence of witnesses in criminal proceedings is generally inadmissible under common law. If it has been established that the sexual charactory or history evidence is relevant, s274 stipulates that this is prima facie admissible evidence.

However, this may be admitted at the discretion of the court following an application to it by the Crown or defence under s275.

The court uses a balancing test, and retains wide discretion, as to whether it permits parties to lead evidence of sexual character or history

Question 17

Problems with the rape shield legislation

Answer 17

The defence will often raise a s275 application and it has been seen that the Crown rarely challenges this. In Scotland during a 3 month period in 2016, it was found that 52 applications for exceptions were made, 42 were granted, 5 were granted in part. Of these 52 applications 48 went unchallenged by the crown.

Shows the next issue is that they are often allowed.

Furthermore, there is a common misconception that the crown operates under the interests of the complainer. This is not true, the crown works in the public interests. Therefore this, alongside the lack of challenges from the crown creates dissatisfaction for the complainer. As the evidence being discussed is often intrusive and can lead to humiliating and irrelevant questioning about sexual history, seems unlikely that the court can make an informed decision without hearing the side of the complainer.

As many go unchallenged, the court may make a decision without hearing evidence in respect of the application.

Leads to cross-examination that is often intrusive, irrelevant and humiliating. Court is meant to intervene if this occurs, however there are cases such as Donegan where they have failed to do so.

Research on this cross examination on this issue supports the view that complainers find the prospect distressing and damaging creating much anxiety. May lead to re-traumatisation of victims leading to them being unable to give coherent and clear testimony.

Question 18

Current position of the area of rape

Answer 18

Growth in number and complexity of rape cases and sexual assault. However, number of people being convicted seems to be falling. Common parties across Europe, rise in reporting and recording but fall in prosecution and conviction (use of juries, specialised court)

Experience of complainers within the criminal justice system remains unsatisfactory due to - delays and re-traumatisaiton (pre-recorded evidence, ILR, specialised court)

Question 19

Areas for reform

Answer 19

Pre-recording evidence
Specialised Court
Independent Legal representation
Use of juries

Question 20

Pre-recorded evidence

Answer 20

Lady Dorrian proposed in a detailed review about improving management of sexual offences and area which could improve delay, retraumatization of victims is through pre-recorded evidence.

The recommendation here is that police interviews with complainers in serious sexual offences should be recorded at the earliest opportunity. Recording should be used as evidence in chief of the witness. Any further evidence should be pre-recorded on commission at earliest possibility

Question 21

Benefits of pre-recording interviews

Answer 21

Involvement in the criminal justice system and the stress associated with this is concluded sooner

The duration of cross-examination is reduced

More detail and more reliable evidence is secured as earlier evidence is captures reduced the likelihood of memory decay or contamination

Also beneficial for the accused and defence legal team as it is an opportunity, from an earlier stage, to see and consider the complainers evidence.

Question 22

Negatives of pre-recorded evidence

Answer 22

Resource implications.

Argument that giving live oral testimony allows witness’s demeanor to be evaluated to determine if they are lying. However, this has been proved to be unreliable. People have misconceptions about indications of lying. Such as shifting body movement, averting gaze. These are not proven to be associated with lying and might be indication of stress

Question 23

Analysis pre-recorded evidence

Answer 23

Protects witnesses from being re-traumatised and provides better evidence in terms of its accuracy as it has been taken much sooner after the event. Allows defence more time to consider, thus outweighing the cost and resource implications.

Question 24

Specialised court

Answer 24

Recommendation that a national sexual offences court should be created which features pre-recorded evidence, specialised trauma-informed training.

Question 25

Benefits of specialized court

Answer 25

• Reduces delay. In South Africa specialist sexual violence courts were linked to reductions in delay
• Domestic violence courts in E&W found enhanced effectiveness of court and support for complainers in the form of improved advocacy of information sharing, increased complainer participation and satisfaction
• New Zealand made pilot sexual offence courts in two districts which found the judiciary were more alert to unacceptable questioning and intervene more frequently.
• Having trauma-informed practices and judicial actors help reduce re-traumatization for victims and create a general deeper understanding of trauma and how it affects people in different ways

Question 26

What is trauma-informed practice

Answer 26

Adoption of strategies to avoid exacerbating trauma-related problems or causing re-traumatisation. Factors which include re-traumatization include witness repeatedly re-telling their story, feeling as though they are not seen or heard, delay and general stress.

Question 27

Negatives of specialised courts

Answer 27

• Not particularly practical. Administerial issues about redirecting court cases etc.
• Goal was that the 3 dedicated High Court venues would be supplemented with 12-16 Sheriff and Jury centres. This is costly and timely
• Providing trauma-informed training for all those who come into contact with witnesses/complainers, that being administerial roles, judges, prosection etc. Is timely and costly.
• Might mean that the people who work in this area are subject to vicarious trauma as they are faced with traumatic cases everyday

Question 28

Independent legal representation - new

Answer 28

First minister made an announcement on the 8th of March that independent legal representation for complainers in rape trials would be introduced in the new criminal justice reform bill. Announcement had little detail however inferred it would be free of charge and apply only to s275 applications

Question 29

What is the argument for independent legal representation

Answer 29

Complainers in sexual offence cases should be entitled to be heard, thus represented for that purpose, at hearings determining whether applications to lead evidence of their sexual history should be granted. This is particularly due to the nature of this questioning as it is incredibly private and intrusive.

Research has indicated that there is a high risk of re-victiminzation of complainers throughout the criminal justice process. In order to try and reduce this they should have independent legal representation for s275 hearings.

Court makes the decision based on a balancing exercise. However, the argument is proposed that, how can the court make an informed decision without hearing evidence from the complainer as to why this line of questioning should not be allowed.

Complainers fail to understand the role of the advocate depute - this creates tension as it is a misunderstanding whereby complainers think the prosecution are working in their best interest. This, combined with the inconsistent approach of the crown challenging these applications exacerbates this tension. This highlights that complainers should have ILR, in this particular area, to soften this tension.

Complainers representative would be able to explain to them the legal framework within which admissibility is assessed. Give informed professional opinion based on an understanding of statute and case law. Detailed instructions in relation to why evidence as to a particular matter might be offensive to the complainer’s dignity or privacy

Builds a relationship of trust therefore perhaps facilitates for more information gathering.

• allows crown to make informed decision
• allows victim to be heard, considering the nature of the questioning this should be important
• allows relationship of trust, faith in the system
• allows for more information to be given to claimant, better understanding of legal framework

Question 30

Against legal representation

Answer 30

Criminal justice system does not recognise private rights of the individual

The judge and prosecutor already have the role of protecting the complainer

Could possibly cost more money and delay in the process

Question 31

Getting rid of juries

Answer 31

Low conviction rate in cases was a cause for concern, potentially indicating an underlying problem with having juries decide on serious cases of this nature

It has been recognised that juries might be subject to stereotypes known as rape myths

Provides an argument that juries might not be best suited to decide on cases of this nature

Question 32

Juries postives

Answer 32

Trial by jury is long established for serious crimes in Scotland and seems to have the general support of the public, prosecution, defence lawyers and the Judiciary. The accumulation of knowledge and experience of life across wide sections of the community in the jury as the decision-making body has been seen as one of the main advantages of trial by jury. The use of jurors drawn at random more democratic method of ensuring public participation in the criminal justice process in a diverse and representative way. Random nature of jury selection brings together people who collectively have a broad experience of life across society, marginalising extreme or unrepresentative views and ensuring diversity amongst decision makers

Question 33

Judges alone - negatives

Answer 33

Views would be drawn exclusively from the top one percent of earners who are still predominantly male, university educated and likely aged between 50 and 70. This is a very narrow pool of people. What would be lost is the main benefit of juries which is the ability to draw on a collective and diverse set of views which negates potentially for extreme or unrepresentative view

There also may be case hardening, especially if a specialised court is adopted. Judges here similar case types and facts, therefore potentially do not decide case on their own uniqueness.

Question 34

Positvies of judges

Answer 34

They have to provide written reasons for their decisions. This has the benefit of explaining to complainers and accused alike whu that verdict was reached and enhances the scope of appeal

Jury trials are time consuming and they disrupt people’s lives. Judges alone would take about have the time. This is favourable as it is seen to benefit victims when there is less delay.

Question 35

Recommendations for jury

Answer 35

What is recommended however is a programme to develop and communicate information to juries regarding certain common rape myths and stereotypes. Could be reminded of these and the beginning, and end of trial and provided information sheets to describe these.

Provide expert evidence to help debunk some rape myths - for example allowing the use of psychologists. This is used in the US and New Zealand for example. Arguably people are likely to positively respond to experts on the matter