On civil remedies and the crime of rape

The decision in the case of DC v DG & DR which was published last Tuesday is potentially of huge significance for the Scots law of rape. The facts were that DC alleged that she had been raped, while extremely drunk, by two professional footballers on 2nd January 2011. She reported the incident to the police immediately but in July 2011, for reasons that have not been made public, the decision was taken not to prosecute the men involved. She then subsequently, with the support of Rape Crisis Scotland, brought a civil action for damages against the men. She was successful in this, with Lord Armstrong holding that, on the balance of probabilities she had been raped by the men, and awarding damages of £100,000. The importance of the case must be seen first of all in the fact that civil actions of this sort are almost unheard of, and it offers the opportunity for the victims of rape and other sexual assaults to pursue other kinds of legal remedy. Of course, as has been pointed out, the case is somewhat unusual in that the defenders were professional footballers and therefore had financial resources - and this may not be the case in other incidents of rape. But this must also be seen in the context of the high attrition rate in rape cases - something illustrated by the publication of the annual statistics on criminal proceedings on the same day. These showed that in spite of the rising number of prosecutions for sexual offences, the attrition rate in rape remained high: of just under 2000 rapes reported to the police, there were only 216 people were prosecuted, and of these only 111 were convicted. This means that a significant number of victims are left without a remedy - and so any means of recognising the wrongs committed against them should be welcomed.

Of course, we must also be cautious because of the fact that this was a civil decision, subject to a lesser burden of proof, and different evidential rules. However, what is striking about the judgment is that, while he does not refer to corroboration, Lord Armstrong is clear that he is not relying solely on the account of the complainer, and that the complainer's account is supported by other independent sources of evidence. This, at the very least, might raise questions about why the decision was originally taken not to prosecute in this case.

But for me the real interest of the decision from a legal point of view lies in the way that Lord Armstrong carefully constructs the evidential case and applies the law - and this in some ways might act as a model for understanding how the law should be applied. The main difficulty in this case was that the complainer was so drunk that on her own admission, she had blacked out and had no memory of the events that took place. In these circumstances it was conceivable, as medical witnesses pointed out, that she might have been able to function as though normal, and might have appeared to have consented - and it is perhaps this possibility that leads juries in similar cases to acquit when it seems to be the word of the complainer against that of the accused. Against this Lord Armstrong takes seriously the rule (in section 13 of the Sexual Offences (S) Act 2009) that a person who is incapable because of the effect of alcohol (or other substances) is incapable of consenting. Here he demonstrates that, whatever might have been her actions, there was compelling evidence from a range of sources that she had drunk sufficient quantities of alcohol to render her incapable and there were witnesses to the effects of alcohol on her. (And the fact that she seemed to have flirted with one of the men earlier was not the same as consenting to sex). It remained then to show that the defenders could have had no reasonable belief in consent, and he demonstrated the inconsistencies in their evidence and its self serving nature, to conclude that they were unreliable.

Of course, questions will remain over whether this evidence would have convinced a jury that it met the criminal burden of proof (beyond reasonable doubt), but the value of the civil judgment here is that the judgment carefully sets out the reasons for the decision, and in doing so provides an invaluable model and demonstration of how the law should properly be applied.

~ Professor Lindsay Farmer

This article originally appeared on the Oblique Intention blog site.

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