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Evidence > Rape trials > Flashcards

Rape trials Flashcards

1
Q

Skeleton

A

Intro
Current law
Application
Issues
Reform
Conclusion

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2
Q

What is rape

A

Intentional or reckless penetration of another person’s vagina, anus, or mouth with penis

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3
Q

Rape authority

A

s.1 Sexual Offences (Scotland) Act 2009

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4
Q

Rape shield authority

A

s.274 CPSA

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5
Q

What does s.274 say

A

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

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6
Q

Rape shield exceptions authority

A

s.275 CPSA

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7
Q

What does s.275 say

A

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

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8
Q

Purpose of rape shield

A

To respect the complainer’s dignity, but not inhibit the fairness of the trial to the defence

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9
Q

What other sections of the CPSA are used in rape trials to protect the complainer

A

s.275C
s.288DA
s.288DB

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10
Q

What does s.275C say

A

expert evidence allowed to rebut rape myths - exception to rule against expert opinion on ordinary human nature

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11
Q

What does s.288DA say

A

Judge should direct jury that complainer credibility not affected by a delay in reporting offence

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12
Q

What does s.288DB say

A

Judge should direct jury that absence of physical resistance does not affect their credibility or reliability

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13
Q

How was the rape shield applied in Donegan v HMA

A

Wasn’t applied.

Judge and jury lead offensive and humiliating questions and allowed rape myths to be voiced in court

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14
Q

Rape myth used by judge in Donegan

A

Asked complainer why she did not scream or tell her neighbours

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15
Q

What similar case supports Donegan

A

Dreghorn v HMA

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16
Q

2016 statistics on s.275 application

A

57 applications
48 allowed

Crown only opposed 6 of them

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17
Q

Rape shield effectiveness

A

Currently, not adhered to in court. Ineffective as requires counsel and judge to enforce, but still old-fashioned views in the courtroom

18
Q

Two main issues of rape trials

A

Corroboration

Rape myths

19
Q

Corroboration explanation

A

Every crucial fact must be proved by at least two pieces of evidence

20
Q

Authority for new corroboraton

A

Lord Advocate’s Reference No.1 of 2023 - distress can now corroborate complainer’s testimony. De recenti exception to secondary hearsay

21
Q

Effect of corroboration requirement

A

Historically, hard to prove rape as typically occurs in private. yet to see effect of LAR in practice

22
Q

What are rape myths

A

Misheld beliefs surrounding the circumstances and effects of rape

23
Q

Examples of rape myths

A

Women are asking for it by wearing revealing clothes

24
Q

How does the CPSA try and counteract rape myths

A

Judicial direction in s.288DA and s.288DB

Insufficient

25
Q

Four reforms

A

1) Pre-recorded evidence
2) Sexual offences court
3) ILR
4) Trial without jury

26
Q

Pre-recorded evidence

A

All of the complainers evidence is taken before the trial, and played to the court on video

27
Q

Why introduced pre-recorded evidence?

A

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

28
Q

Arguments against pre-recorded evidence

A

Could inhibit cross-examination. Not convincing, as cross-exam can still be done and recorded

ToF not able to test demeanour

29
Q

Authority for sexual offences court

A

Part 5 of the Victims, Witnesses and Justice Reform (Scotland) Bill

30
Q

Sexual offences court

A

Specialist court for sexual offences only. Judges receive trauma-informed training and are appointed by the Lord Justice General

31
Q

How much High Court time is spent on serious sexual offence cases

A

70%, as of 2021

32
Q

Evidence of successful specialist court

A

2017 New Zealand pilot

33
Q

Pros of specialist court

A

time, money, victim treatment, and satisfactory judgements

34
Q

Cons of specialist court

A

trauma-informed practice could inhibit defence and LJG has absolute power to appoint

35
Q

Trial without jury

A

come on

36
Q

Why remove jury

A

Jury are too influenced by rape myths.

94% of criminal convictions in 2021 were in summary

37
Q

Pros of trial without jury

A

Single judge easier to educate

They have to give reasons for their decisions

Don’t need law explained to them - time and money efficient

38
Q

Cons of trial without jury

A

Judge is still influenced by rape myths (Donegan)

Jurors bring a diversity of experience and opinion

39
Q

ILR

A

Independent legal representation - publicly funded representation

40
Q

Pros of ILR

A

Effective opposition to s.275 applications

Effective voice and shield against unfair questioning

41
Q

Cons of ILR

A

Cost

42
Q

Conclusion

A

Answer the question

Evidence (4 decks)

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