A rape victim’s distress can be used to bring their attacker to justice in court after a landmark ruling.
Lord Carloway, who sat with six colleagues, yesterday ruled that the distress displayed by a complainer to another witness can be used to corroborate sexual assaults.
The ruling comes months after Lord Advocate Dorothy Bain, KC, told the Court of Criminal Appeal in Edinburgh how practices in the Scottish legal system were ‘out of step’ with other countries.
Ms Bain, Scotland’s most senior prosecutor, said it was wrong for jurors not to be allowed to consider that the distress shown by a rape victim in the immediate aftermath of an assault can corroborate the crime.
Ms Bain’s submissions were upheld, and Lord Carloway wrote: ‘It is clear that, in the Commonwealth generally, distress can provide corroboration of a sexual assault, including rape, without any need to corroborate penetration separately.
Lord Advocate Dorothy Bain, KC, previously told the Court of Criminal Appeal the legal system was ‘out of step’ with other countries
‘Scots law is out of step with the rest of the Commonwealth.’
And the 126-page ruling ended: ‘The answer to the questions in the reference is that a witness testifying to the de recenti (recent) distress of a complainer is capable of corroborating direct evidence from a complainer that she has been raped.’
Rape Crisis Scotland described the judgment as a ‘seismic change’.
A spokesman for the group said: ‘The requirement for penetration to be independently corroborated has, for decades, acted as a barrier to rape and abuse survivors receiving the justice they are entitled to.’
The Lord Advocate said the decision could ‘transform the way we prosecute all offences, in particular sexual offences, and will improve access to justice for more victims’.
She added: ‘The Crown Office and Procurator Fiscal Service will now consider the terms of the ruling carefully.
‘Since my appointment, I have sought to do all within my power to deliver justice for women and girls, who are disproportionately impacted by sexual offences.
‘The potential to introduce transformative change, such as through this Lord Advocate’s reference, was one motivation for me in taking this office.’
Campaigners claimed the law prevented many alleged rape cases going to court
Ms Bain addressed the appeal court in July after a ruling made by a judge who presided over a trial at the High Court in Aberdeen last year.
There a man, who has not been named, was accused of raping a woman in March 2019. He denied that he had any sexual activity with the complainer in the case.
The judge directed the jury that the woman’s distress could not of itself corroborate penetration, but could only confirm that she suffered some distressing event.
Ms Bain said this practice was wrong and should be altered.
Roddy Dunlop, KC, in opposing the Lord Advocate, said it shifted the ‘balance too far in favour of the Crown’.
The Dean of the Faculty of Advocates said: ‘I need hardly stress the importance of this case. At stake are fundamental aspects of the law of corroboration under criminal law.’
Rape survivor and campaigner Ellie Wilson, 25, welcomed the ruling.
Ms Wilson, who has waived her right to anonymity, said: ‘Previously it was only the defence that was able to use lack of evidence of distress to disprove a rape claim but rape survivors weren’t able to use evidence of their distress to prove their claim. That’s fundamentally unequal.’
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