Last week the Scottish Government published The Victims, Witnesses and Justice Reform (Scotland) Bill. The legislation aims to reduce the re-traumatisation of victims and witnesses in the justice system and to address long-standing concerns about the approach to the most serious sexual offences. See: Putting victims and witnesses at heart of justice system – gov.scot (www.gov.scot)
The Bill draws on work led by a senior judge, Lady Dorrian, which brought together partners from across the justice system to make recommendations on how to improve the management of sexual offence cases. See: Lady Dorrian Review Governance Group: Specialist Sexual Offences Court Working Group Report – gov.scot (www.gov.scot)
Currently, the system does not work well for survivors of rape or attempted rape. (Women are by far the largest group of survivors, but of course men can also be victims of rape and experience similar issues).
We know that most rapes are not reported to the police – for example, the Scottish Crime and Justice Survey 2019/2020 found that only 22% of victims of rape reported it. Clearly, survivors don’t have faith in the system.
Of the 2,298 reported rapes or attempted rapes that were recorded by the police in 2020/2021, only 152 progressed to court. And, of those cases, only 51% resulted in a conviction, compared to a conviction rate of 91% for all other crimes. Juries are consistently more reluctant to convict in rape trials than for other categories of crime. See: Our initial response to proposed criminal justice reforms | Rape Crisis Scotland
So, it’s fair to say that most incidents of rape and attempted rape do not result in any consequences for perpetrators other than those arising from their own conscience. Survivors must try to recover and rebuild their lives knowing that the men responsible for the harm done to them will not be held accountable and might rape again. This leads many people to believe that rape is, effectively, decriminalised.
It is against this backdrop that the Scottish Government has proposed a series of reforms including:
- Abolishing the not proven verdict.
- Reducing juror numbers from 15 to 12 and increasing the jury majority required for conviction to at least two-thirds.
- Establishing an independent Victims and Witnesses Commissioner for Scotland.
- Providing lifelong anonymity for victims of sexual offences.
- Establishing a specialist sexual offences court.
- Providing state-funded independent legal representation for complainers when applications are made to lead evidence of their sexual history or ‘bad character’ in sexual offence cases.
- Enabling a pilot of single judge trials for cases of rape and attempted rape to gather evidence on their effectiveness.
These reforms have been described as far reaching and are not without controversy, particularly the proposed pilot of single judge trials for rape and attempted rape.
I have no firm view on whether juries should be abolished for rape trials – and the fact that the Scottish Government is only proposing a pilot suggests that they do not have a firm view either. Pilots don’t automatically lead to wholesale change, as the purpose is to gather evidence on the outcomes of whatever change is being piloted to inform future decisions.
But the response to this proposal from many defence lawyers has been vociferously hostile, with suggestions that solicitors might boycott a pilot, rendering it inoperable.
There are differing views on why convictions in rape and attempted rape cases are so much lower than for other crimes. Reasons could include the fact that sexual violence usually takes place in private with no witnesses. However, it is also highly likely that – since jurors are drawn from wider society – some will believe in various rape myths that are prevalent in society, and this could affect their thinking.
Rape myths can include the belief that it is common for women to lie about being raped, that victims can share some responsibility for their rape due to the way they dress or behave or how much they drink, that women sometimes say no when they mean yes, that it cannot be rape if the victim and perpetrator are or have been in a relationship, that it is not rape unless the victim fights back and is physically overpowered, that most rapes are committed by strangers, or that rape is simply bad etiquette or bad sex which the complainer regrets. Women as well as men can subscribe to these sorts of myths.
We can’t know for sure what role such prejudices might play in a jury’s decision-making since juries are not asked to explain their reasoning. In contrast, if judges determined verdicts written reasons would be provided. This would help both the complainer and the accused to understand the basis of the verdict.
It seems to me that this approach is certainly worth investigation. Most criminal trials in Scotland are already decided by a single judge without a jury, and some other European countries try rape cases in this way.
I do understand the concerns that defence lawyers have about the proposal, and they are correct to express any reservations that they have. It is their job to get the best possible outcome for their clients and, if they consider that removing juries might disadvantage their clients, it is right and proper to oppose that.
However, the government is only proposing to pilot jury less trials in a limited way. There is no proposal to institute a permanent change across the whole system. The furious nature of the response to a proposed pilot seems quite disproportionate to me.
The sheer strength of feeling that has been expressed – up to and including comparisons with Hitler – suggests that some believe removing juries from rape trials would strongly disadvantage the accused. It is reasonable to ask why, since the evidence presented to a judge would be the same as the evidence presented to a jury.
It’s probably a safe bet that this debate will generate more heat than light, such is the nature of our politics. It is important that MSPs thoroughly scrutinise these proposals, but I hope the wider context for these reforms will be front and centre as the bill progresses through parliament.
Our society has too high a tolerance for sexual violence. Rape culture is common, and many survivors are afraid that they won’t be believed. This is not all the fault of the justice system of course, nor is it something that can be resolved simply by politicians passing new laws. Rather, it is a societal problem that requires societal change.
However, our justice system must be part of that change by ensuring that it operates in a way that does not re-traumatise those who have experienced sexual violence, but rather treats them with respect and dignity. The needs of victims must be at the centre of reform because their voices have been marginalised for too long.
This bill follows long years of campaigning by survivors from across Scotland, many of whom have been badly let down by the injustices of the current system. We owe it to them to do better. I trust that MSPs will keep this duty at the front of their minds in the months ahead.