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The law is changing, but is it helping victims of rape?

 

This article evaluates the effectiveness of the Sexual Offences (Scotland) Act 2009 and consequent legislation in protecting the victims of rape. 

Written by Clare McDevitt, second year LLB and sub-editor of the Criminal law section of the Review

 

 

 The current Sexual Offences (Scotland) Act 2009 was introduced to provide a “modern code” of specific sexual offences for Scots law[1].  However, despite the legislation regarding rape and sexual offences changing, there are still several fundamental problems with the Scottish justice system in its handling of the offence.

 

Prior to the 2009 Act, “A Report on Rape and other Sexual Offences” was published by the Scottish Law Commission (SLC). It was concerned with finding the problems with the existing common law in Scotland regarding sexual offences. Additional advice on what should be included in the new act as well as the structure the statute should take was included.  Emphasis was on clarity of the law and ensuring that the protections of the ECHR were within the statute. The Commission stated, “The effect of Article 3 and Article 8 is that a state must provide for the penalisation of non-consensual sexual activity, including where there is no evidence of physical resistance by the victim, in order to secure protection of an individual’s sexual autonomy.”[2] 

 

To ensure that the Scottish laws would fulfil this criterion it is clear that the most important question was the legal definition of consent. The SLC heavily criticised that there was no real definition in Scots law, citing the case of Marr v HM Advocate, which was concerned with sexual assault. Here the jury asked for a definition of consent only to be met with the reply, “The definition of consent is a common, straightforward definition of consent. It’s the common English word given its normal meaning. And that I am afraid is it. Consent is consent.”[3] On appeal the High Court decided that the judge had fulfilled her duty as, “She made it plain to the jury that the word 'consent' had no special meaning in law but required to be given its normal meaning.”[4] This issue was attempted to be solved by the 2009 Act which in s.12 states “consent” means free agreement (and related expressions are to be construed accordingly.  Considering a survey of over 900 Scots in 2008 found that 24% think a woman can be at least partly responsible for being raped if she is drunk at the time of the attack; whilst 29% said there should be some burden of responsibility for rape if the woman is flirting[5], the term “free agreement” which is reminiscent of the term “active consent” used by Lord Justice General Cullen, is not particularly helpful to a jury made up of laymen. 

 

In order to answer the question of consent, lawyers must rely upon evidence. Therefore the proposal of the corroboration rule being abolished by the Scottish Government will be of particular interest to lawyers experienced in dealing with sexual offence cases as finding corroborative evidence is notoriously difficult. One of the reasons being that in the majority of cases a witness is not present and additionally, women are far more likely to be sexually victimised in their own home than in any other location.[6]  

 

The law has evolved over time to allow, in certain circumstances, evidence of the victim’s distress after the incident to be used as corroborative evidence. One example is the case of Cannon v HM Advocate[7] where such evidence was granted to be corroborative even though it was exhibited 12 hours after the event as the complainer delayed disclosing her distress until she had the opportunity to speak to a close friend. It should be noted that there seems to be an assumption of what the victim’s behaviour should be, in 1990[8]the courts decided that evidence a complainer had spent the day after the alleged incident seeing her boyfriend and searching two pubs for her handbag could not be used as corroborative evidence. The court have introduced other restrictions, for example, evidence of such distress cannot be too remote from the incident, or where there is an alternative explanation for the distress is it up to the jury to decide which explanation is supported more by the facts. These assumptions of how one should behave after such a traumatic incident appear to be out-dated and perhaps unfair on an individual who when in shock does not behave in a particular manner. In addition, it serves to support the stereotypical idea of “real rape” and doesn’t take into account rape within an existing relationship, or between individuals who know each other which may garner a different response than that of an attack by a stranger.

 

A positive change brought by the 2009 Act was that it does not refer to any pre-existing relationships between the parties involved. Rape within marriage was a “grey area” of the law not only in Scotland, but the whole of the UK for quite some time. The issue was confronted in the Scottish case of S v HM Advocate[9]  in  1995, the issue went to the European Court of Human Rights in C.R v U.K; S.W v UK[10] where the applicants argued that they were made retrospectively criminally liable for rape within marriage, breaching their Article 7 rights. The court thankfully rejected this argument, stating the applicants must have anticipated the necessary evolution of the law on marital rape and that it was reasonably foreseeable that they would be prosecuted[11]. Additionally, rape is no longer a gender-specific crime.

 

For those who report such crimes to the police it is not an easy decision to make as the crime is of such a serious nature that the complainer and the alleged perpetrator are subject to heavy scrutiny. One of many organisations working to help rape victims, Rape Crisis Scotland states, “Your medical records are not looked at if you are robbed or if someone tries to murder you, but if someone rapes you it is likely that they will be - that private records covering conversations with your GP will be scrutinised, along with potentially other private records including education, Social Work, Health and counselling, any of which can be scrutinised for anything which can be used against you.”[12]  The law regarding the treatment of victims and witnesses has recently been changed with the Victims and Witnesses (Scotland) Act, the aim of which is to improve the experience of victims and witnesses of crime within the Scottish Justice System.

 

However the law stands, there are a range of common misconceptions about the law of sexual offences and what exactly constitutes rape. Hume described the offence as “an injury of the most grievous nature…robbery of that in which a women’s honour, her place in society, and her estimation in her own eyes”[13]  Although we have made considerable progress, the stigma of the crime still very much exists. It is of such a sensitive and traumatic nature that the number of unreported rape cases is estimated to be high and attitudes that women can “help” themselves to be raped by drinking alcohol or wearing short skirts remain prevalent.  In order to combat this, Police Scotland have introduced a new campaign, “We Can Stop It”, which aims to raise awareness of the new laws of consent and importantly highlights that sexual attacks on men have been legally classed as ‘rape’ for the very first time. The campaign includes both heterosexual and homosexual males holding signs stating things such as “I listen when a girl says no”.  Education through campaigns such as these can only bring positive changes to existent misconceptions.

 

It is clear that positive changes have been made to the law regarding sexual offences.  However there are several key issues that need to be addressed. In court, the treatment of witnesses and victims needs to be addressed as well as a sufficient solution to the issues surrounding evidence should the rule of corroboration be abolished.  Beyond the court, the government have a responsibility to ensure that the false misconceptions surrounding rape are dispelled and should continue to fund services such as the Archway clinic in Glasgow which specialises in collecting forensic evidence from victims for trials and continue national campaigns. Finally, the process should be focused on protecting the victims and those who have been falsely accused of sexual offences ensuring that the fundamental rights of all citizens in Scottish courts are protected adequately.

 



[1] Criminal Law, 5th Edition, T.H. Jones & M.G.A Christie, pp235 (9-79)

[2] Scottish Law Commission “Report on Rape and Other Sexual Offences”, published December 2007

[3] Marr v HM Advocate 1996 SCCR 696

[4] Marr v HM Advocate 1996 SCCR 696 at 699 E-F.

[5] Domestic Abuse 2007/08: Post-Campaign Evaluation Report, Scottish Govt, published 18/07/2008

[6] Rape and sexual assault of women: the extent and nature of the problem, Findings from the British Crime Survey, Myhill and Allen, Home Office Research, 2002

[7] Cannon v HM Advocate 1992 SLT 709

[8] Moore v HM Advocate 1990 S.L.T 278.

[9] 1989 S.L.T. 469

[10] (1995)  21 EHRR 363

[11] http://ukhumanrightsblog.com/incorporated-rights/articles-index/article-7-of-the-echr/

[12] http://www.rapecrisisscotland.org.uk/news/law/#Complainersindock

[13] Hume, The Commentaries, Vol I, Rape

 

 

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