Rape trials Flashcards
Skeleton
Intro
Current law
Application
Issues
Reform
Conclusion
What is rape
Intentional or reckless penetration of another person’s vagina, anus, or mouth with penis
Rape authority
s.1 Sexual Offences (Scotland) Act 2009
Rape shield authority
s.274 CPSA
What does s.274 say
Prohibition of evidence that suggests complainer’s
1) bad character
2) sexual history outside of the case
3) non-sexual conduct that could convey consent
4) lack of credibility
Rape shield exceptions authority
s.275 CPSA
What does s.275 say
3-part cumulative test for leading prohibited evidence:
1) specific evidence of complainer’s character or condition
2) relevance
3) probative value outweighs prejudicial effect
Purpose of rape shield
To respect the complainer’s dignity, but not inhibit the fairness of the trial to the defence
What other sections of the CPSA are used in rape trials to protect the complainer
s.275C
s.288DA
s.288DB
What does s.275C say
expert evidence allowed to rebut rape myths - exception to rule against expert opinion on ordinary human nature
What does s.288DA say
Judge should direct jury that complainer credibility not affected by a delay in reporting offence
What does s.288DB say
Judge should direct jury that absence of physical resistance does not affect their credibility or reliability
How was the rape shield applied in Donegan v HMA
Wasn’t applied.
Judge and jury lead offensive and humiliating questions and allowed rape myths to be voiced in court
Rape myth used by judge in Donegan
Asked complainer why she did not scream or tell her neighbours
What similar case supports Donegan
Dreghorn v HMA
2016 statistics on s.275 application
57 applications
48 allowed
Crown only opposed 6 of them
Rape shield effectiveness
Currently, not adhered to in court. Ineffective as requires counsel and judge to enforce, but still old-fashioned views in the courtroom
Two main issues of rape trials
Corroboration
Rape myths
Corroboration explanation
Every crucial fact must be proved by at least two pieces of evidence
Authority for new corroboraton
Lord Advocate’s Reference No.1 of 2023 - distress can now corroborate complainer’s testimony. De recenti exception to secondary hearsay
Effect of corroboration requirement
Historically, hard to prove rape as typically occurs in private. yet to see effect of LAR in practice
What are rape myths
Misheld beliefs surrounding the circumstances and effects of rape
Examples of rape myths
Women are asking for it by wearing revealing clothes
How does the CPSA try and counteract rape myths
Judicial direction in s.288DA and s.288DB
Insufficient
Four reforms
1) Pre-recorded evidence
2) Sexual offences court
3) ILR
4) Trial without jury
Pre-recorded evidence
All of the complainers evidence is taken before the trial, and played to the court on video
Why introduced pre-recorded evidence?
Minimises humiliation and fear for the complainer
Evidence can be taken closer to the time of the offence e.g., initial police interview
No collateral evidence
Arguments against pre-recorded evidence
Could inhibit cross-examination. Not convincing, as cross-exam can still be done and recorded
ToF not able to test demeanour
Authority for sexual offences court
Part 5 of the Victims, Witnesses and Justice Reform (Scotland) Bill
Sexual offences court
Specialist court for sexual offences only. Judges receive trauma-informed training and are appointed by the Lord Justice General
How much High Court time is spent on serious sexual offence cases
70%, as of 2021
Evidence of successful specialist court
2017 New Zealand pilot
Pros of specialist court
time, money, victim treatment, and satisfactory judgements
Cons of specialist court
trauma-informed practice could inhibit defence and LJG has absolute power to appoint
Trial without jury
come on
Why remove jury
Jury are too influenced by rape myths.
94% of criminal convictions in 2021 were in summary
Pros of trial without jury
Single judge easier to educate
They have to give reasons for their decisions
Don’t need law explained to them - time and money efficient
Cons of trial without jury
Judge is still influenced by rape myths (Donegan)
Jurors bring a diversity of experience and opinion
ILR
Independent legal representation - publicly funded representation
Pros of ILR
Effective opposition to s.275 applications
Effective voice and shield against unfair questioning
Cons of ILR
Cost
Conclusion
Answer the question
