Brutality and limbo: Inside the plan to change Scottish rape trials

After extensive court delays in the case she had thought it would go to trial within a year, but then she heard nothing.

"It became my life for four years. You wait and you wait, but you can’t put something behind you if it’s still ahead of you," she added. "You can’t forget about something if you know you are going to be questioned about it quite brutally, in a room full of people. I was just caught in this limbo.”

These sorts of experiences appear to be common among women who have been through rape trials – with long waits, a lack of communication from key organisations in the justice system and a perception of insensitivity among defence advocates repeatedly cited by complainants.

Justice Reform

It was these concerns that drove the Scottish Government to publish the Victims, Witnesses, and Justice Reform (Scotland) Bill, with the aim of improving the experience of victims and witnesses in the justice system. The scope of the Bill is wide-ranging, including plans to change the size of a criminal jury, to create a new sexual offences court, to introduce automatic life-long anonymity for victims of sexual offences and to provide the automatic right to independent legal representation complainers in sexual offence cases.

Pointing to figures putting conviction rates for rape at 51%, compared to 91% for all other crimes, organisations such as Rape Crisis Scotland has called for change for years. Yet despite a general consensus that the experiences of those giving evidence in rape trials needs to improve, the Bill quickly attracted controversy, particularly plans to pilot juryless rape trials.

Proposed by Scotland's second most senior judge, Lady Dorrian, as part of a review that informed the Bill, the plans would see anyone accused of rape or attempted rape stand trial before a single judge or sheriff, who would decide whether or not they are guilty.

Scotland's second most senior judge, Lady Dorrian (Image: Newsquest)

But the backlash was furious. First Minister Humza Yousaf continued to defend the plans – pointing to the prevalence of rape myths which are seen to influence jury decision making, driving down convictions – and lawyers resisted, leading to a growing stand-off developing between the two camps.

Growing backlash

As the days passed the debate grew louder and louder – with senior lawyers framing the pilot as an attack on the basic principles of justice and the Scottish Solicitors Bar Association calling the plans "an alarming development that we can see absolutely no justification for" and arguing that “no other civilised country dispenses with juries in such cases.”

Members of both government and the legal profession questioned the comments – pointing out that both France and the Netherlands have some form of rape and attempted rape trials carried out without juries – but outrage continued to build. Former FM Nicola Sturgeon eventually weighed in, before being accused of Trumpian tactics, with opposition culminating in plans for a widespread boycott of the pilots.

Victims' Voices

Meanwhile, for complainers such as Hannah, the furore was further proof of the way women reporting rape can be treated as an afterthought, with their treatment based in a lack of empathy.

She said: “It works in two ways – you’re treated like the bad thing that happened to you is over, so now you’re evidence, or a witness. But you know about the questioning you’ll get. So you’re not considered, but you’re also gearing up for what will be one of the most traumatic experiences of your life. You’re aware you’ll be cross-examined, possibly in a terrible way. And you don’t know who the defence will be until the day of the trial.”

Read more: More lawyers hit back at Sturgeon claim they are acting politically

These experiences are reported time and again by women who have been through trials. And while some rape survivors also have expressed concern over single-judge trials – one woman pointed to a recent community service order, handed out by a judge to a man convicted of rape, to question assumptions behind the plans – there remains a sense that, whatever the solution, the system is failing women at present.

Miss M, who has an anonymity order and cannot be identified, reported being raped while at university. But her experience of the system was so bad that, around 18 months into her case, she tried to pull out entirely.

“I didn’t have any support after the police handed the case over to the Procurator Fiscal, and as time went on it got so bad I couldn’t go to university anymore. I was really struggling. So I wrote to the procurator fiscal and said ‘unfortunately the time has come where I need to think of my own mental health and future, over this case’. They didn’t respond, but within six or seven hours I had two police officers at my door, saying I could have a case against me, if I tried to pull out, because they had laid charges by that stage.”

First Minister Humza Yousaf has faced a backlash over the proposed reforms (Image: Newsquest)

Her trial was then moved forward by several months, at little notice, making it hard to organise support. Then, a couple of days before it began she learned the trial had been moved to another city. Miss M required two types of surgery after the attack, but the change in date meant her surgeon was unable to give evidence – though she only learned this after the case closed.

When the case did begin, she was told not to sit through trial and watch. “They said it gave the wrong impression to the jury, that it didn’t look good, if you listen to the evidence. So I had to send my brother and my dad, and you can imagine how hard that was for them, to have to tell either their daughter or their sister, ‘they are saying this happened’.”

Eventually, the verdict came in as ‘not proven’ – known as the ‘third verdict’ in the Scottish legal system. Campaigners have long argued that confusion over the meaning of not proven, which amounts to a full acquittal, helps drive down conviction rates in rape cases, with the Scottish Government introducing plans to scrap it as part of the Bill.

But after receiving the verdict, Miss M chose to pursue a civil case against the accused, which she won in October 2018. And, unlike in criminal cases, the rules surrounding civil trials allowed her to pursue the case without a jury.

“Two of the jury members, in my criminal trial, found some of the details quite difficult to listen to. They got quite upset, we had to stop the trial a couple of times for them to be excused. And, for me, I have that guilt on my shoulders that someone was put through something, to listen to something like that. It is not a nice thing to listen to. I never wanted it to happen to me, but I do feel sorry for the people who had to listen through what happened.”

Miss M is also sceptical about whether direction from a judge, warning jury members about rape myths, will counteract years of preconceptions.

“For me, I wanted someone with a legal background to make the decision. To listen to the facts and the evidence of the case. I know the jury gets direction from the judge, but it isn’t going to change preconceived notions you have always held. If someone thinks rape is a man dragging a woman off into the bushes, they need to understand it could also be someone in bed with their husband. Yes, those are very different scenarios, but they are both rape.”

Civil versus criminal cases

She says the experience of a civil case was far better than the criminal trial, with a set court date allowing her to plan and arrange support and a direct relationship with legal representation giving her greater agency over proceedings.

“I sat through every part of the evidence, there was nothing I didn’t sit through. I didn’t have a screen, and it wasn’t like I was pandering to some theatrical performance, like it would have been with a jury. People understood, they knew it was my case, so my dad and brother didn’t have to sit through it all. I never had any of that in the criminal trial. I wasn’t just a witness to my own crime. I had agency back.”

One of the issues in these cases stems from complainants feeling a sense of powerlessness, or a lack of control over proceedings, and instead being treated as a witness to a crime. Several interviewees have described a lack of communication from police or prosecutors, while others have called for more information to be made available to survivors, to help them navigate a complex, alien system.

And even in cases where an attacker pleads guilty, there remains a feeling among complainers that the system is not set up to take account of their experiences. In Miss C’s case, she waited four years for the man who raped her to plead guilty.

Miss C said: “I just remember thinking, ‘can someone just tell me what is going to happen? How long is he going to get for rape? What do I have to do? What is the High Court?’ It was almost like someone had to make a victim’s guidebook for going through court. I was really lost for the first couple of years.”

Read more: Rebellion over juryless rape trials grow as more lawyers join boycott

She is confident her experience would have been better had there been a trauma-informed approach in place when she went to court. But a lack of communication, combined with lengthy delays, put her physical and mental health under huge pressure.

“I went through a four-year court case, so you can imagine the toll that takes on your life. I started to get really mentally and physically unwell from it. I developed a lot of health problems, a lot of stress, a skin rash from top to toe, I had alopecia, with little chunks of my hair falling out. I developed disordered-eating, which I am still now getting help for.

“Trauma effects your body and your mind, and it has this knock-on effect. So, in terms of the proposed changes, there is a real need to speak to people in a way that reduces the traumatisation they could possibly have. For example having one point of contact when you are contacting the police – when I wanted to find out updates on my case I’d be sitting on the phone to 101 for about 40 minutes at a time, or the Crown Office, and I’d never end up with someone who knew anything about my case. It felt like I was constantly having to re-explain it.”

Several of the interviewees in this piece also highlighted how difficult it can be to meet the accused, or relatives in the court during an appearance, with one woman describing having to sit in the same canteen as his family while they ate lunch.

Miss C supports proposals to allow survivors to get independent legal representation, alongside plans to introduce a specialist sexual offences court. She received support from Rape Crisis, which she says made her experience far easier, with her contact able to act as a point of contact to relay information on her case.

She said: “They need to look at how bad news can be delivered more sensitively. There’s a need for clarity, for explanation, for being able to chase things up properly – or even just for people to call when they say they are going to call. You could be waiting, and you’d just hear nothing. But you’re engaging with so many people at any point in the justice system and if you come across one person who just doesn’t understand or just doesn’t have the right level of empathy it can ruin your day, or if you are already in a traumatised state it can actually be quite dangerous.”

President of the Law Society of Scotland, Sheila Webster, says it is imperative that significant improvements are made (Image: Newsquest)

And, unlike the furore surrounding the pilot for single judge trials, the need to treat victims more sensitively is likely to draw greater consensus between the various groups with an interest in the Bill.

President of the Law Society of Scotland, Sheila Webster, said: “It is imperative that significant improvements are made to ensure that complainers in sexual offence cases are treated fairly and with sensitivity and respect.

 “As this Bill progresses, we will continue to be vocal supporters of measures to promote education around trauma informed practices and provide access to non means tested legal representation for complainers in these difficult cases.

 “We are advocates for progress, but not at the expense of a fair, just and open criminal justice system. The proposed pilot aims to increase conviction rates in some of the most serious crimes and in doing so, undermines the fundamental principle on which our justice system is founded, the presumption of innocent until proven guilty.

 “The legal profession’s reaction to this important issue is testament to their dedication to the principles of justice, the clients they serve and the strength of feeling about this problematic Bill.”

Nearly enough to protect rape survivors

Whether ministers will continue to pursue the more controversial aspects of the changes remains to be seen. Yet there is also a sense that the high profile debate surrounding these changes, often heated by incendiary language, is symptomatic of a system that does not do nearly enough to protect rape survivors.

One complainant, whose case is still live and wished to remain anonymous, said: “Not everyone will agree with this bill. But the language that has been used, including from advocates, has been really vilifying in terms of victims. It feels like they are cross-examining the Bill and victims are just collateral damage.

“The language that has been used has been really detrimental. I’ve seen solicitors try to debunk the idea that rape myths exist, and that was hard to see. It is clear as day that there are rape myths out there – just look on Twitter, you can see the comments, and any one of those people could be on a jury. I personally don’t think I would want a one judge trial – I think it would need to be three – and it would be helpful to have a reasoned decision.

“But the conversation needs to calm down – there are ways it can be had without it being such a setback to victims. It’s been really difficult to hear. There are people who are dreading what is to come and are seeing this circus going on. For me, it’s really scary, and it won’t just be me. There will be a lot of people – complainers – waiting for their trial, and they are sitting watching the news. The advocates and the bar associations seem to be forgetting that there are real people, with real trauma, being impacted by their words. You feel really silenced.”

She added: “What I want to know is, what do they suggest? Because it isn’t working at present. If they don’t think the changes will work, then what will? Let’s have a constructive conversation.”