No one wants to further burden a victim of sexual assault but we cannot allow assailants to walk free
Women don’t report rape because they know they will be put on trial and until that illogical, inhuman and unjust approach is effectively addressed, prosecutions will remain scandalously low.
Like many of you, I know relatives, friends and close colleagues who have been subjected to rape. But I know no one that has reported it as a crime. And that speaks volumes. It says women don’t trust the system.
And against a backdrop of recent protests in Spain over the decision of a court to clear five men of gang rape, on the basis that the woman had not fought back, and in the rallies in Belfast and Dublin after the acquittal of two Irish rugby internationalists for rape following an eight-day cross-examination of the complainant which so barbarically tore her character apart, no wonder women turn their backs on a system meant to protect them.
In reporting such a brutal crime, women can be further brutalised by a legal process that can, as one woman told the Inspectorate of Prosecution in Scotland’s own investigation into the low conviction rates of such assault, feel worse than the crime itself.
So, you would assume that to put further barriers before a woman who has been so utterly defiled would be a scandal.
But that, it would first appear, is what has happened with a change in policy by the Crown Office and Procurator Fiscal Service (COPFS) in March which means women who don’t want to proceed with the case could be forced to.
Yes, rape convictions are ridiculously low – just five per cent – but to believe that the answer is to then legally compel rape victims who are ‘reluctant witnesses’ to give evidence appears, at first take, sheer madness.
This, say opponents of the policy change, including Rape Crisis Scotland and some MSPs, is unfair to victims of rape. It is, they argue, wrong to force women who have endured the most dehumanising and disempowering of crimes to do something they don’t want to do.
It is surely to heap horror upon horror that they could be the ones that end up punished and in this, at least, shouldn’t victims be given the power to say ‘no’?
But let’s just explore this for a moment.
Is it just or fair, that a practice has developed in Scotland – for it exists nowhere else in these islands – where uniquely in rape cases, the complainants have had the power to veto a legal process which is there to protect, punish and above all, seek justice?
Is it right that a teenage girl can be raped at knife-point by a man that had previously been charged with the rape of another teen but walked free because his earlier victim stopped court proceedings because she felt unable to continue?
Is it fair that a father grieves the death of his grown-up daughter, killed by her abusive partner after being released from prison, because the case against him for raping her collapsed when she said she couldn’t carry on after he had threatened her from behind bars?
Is it just that an historical child abuse case fails because the middle one of three victims decides to drop out because she wants to stop feeling afraid, get on with her life, and in so doing, breaks the chain of evidence that could have led to the conviction of a serial sex abuser?
These are difficult, extreme and exceptional cases and although fictionalised are based on fact and this is what the Crown has been wrestling with as it considered how to increase convictions and keep society safe of violent offenders.
No one wants to further burden a victim of sexual assault by suggesting they do something they don’t want to do for the sake of the greater good but neither do we want a justice system that eschews the principle of presumed innocence, does not protect complainants from threats, ignores its responsibility to protect the public, or is so blinded by emotion that ultimately, it allows assailants to walk free.
A system has developed that puts the responsibility for a rape case proceeding firmly on the alleged victim.
And while some will argue that that practice has helped empower those that have been disempowered, that’s not really the role of the Crown and neither has it helped increase convictions.
Indeed, in England and Wales, where the policy to “compel” has always been, conviction rates are marginally higher.
Allegations of rape and sexual assault are problematic. The very nature of a normally unwitnessed crime makes the prosecution process complex and open to nuance. And where such evidential challenges exist, the victim’s evidence is critical.
Intimidation, manipulation and the abuse of power are all in the rapist’s toolkit and COPFS believes the ‘opt-out’ practice, far from putting power in women’s hands, could be a charter for intimidation, to the further detriment of women.
The system can be improved and it is undoubtedly an uncomfortable position for someone with the pedigree of Alison Di Rollo, the Solicitor General, to be so out of step with Rape Crisis Scotland because ultimately, they both want the same thing.
But the new policy has been in operation since March and far from seeing women forcibly made to stand in the dock, Di Rollo has already sanctioned ‘no proceedings’ in a number of cases where the Crown has decided it would not be in the best interests of the complainant for the case to proceed.
Unquestionably, how rape cases are handled demands constant scrutiny. From the dehumanising process of initial investigations through to the low conviction rates and the way a complainant’s sexual history, dress code and social mores are still used against them. That this has disproportionately focused on a policy change that is unlikely to make any great difference in practice and is, says the Solicitor General, about “doing the right thing”, deflects from the greater work that needs to, and is being done, to find the right, fair and just ways to secure those much-needed convictions and to protect more women from more harm.