A rape survivor is leading calls to remove a legal "loophole" which could allow her attacker to contact her once he leaves prison.

Protective orders are often put in place while charges are pending and while a conviction of rape or sexual assault is being served.

However, current sentencing guidelines allow judges to grant or reject long-term protective orders at their discretion at the point an offender is released.

One survivor, who we are only naming as Amelia, told The Herald a judge rejected the protection in her case, ruling it was not necessary because she had taken the decision to relocate away from Scotland.

The order was also refused because the offender made no attempt to contact her while he was on bail while interim interdicts were in place.

She has now launched a petition urging the Scottish Sentencing Council and Holyrood's Criminal Justice Committee to automatically grant non-harassment orders (NHOs) to put protections in place for victims once their perpetrators are released from prison.

Amelia's story 

While a student at the University of Edinburgh, Amelia was subjected to rape and assault from a former boyfriend in 2018.

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Her attacker was sentenced to just over four years in prison in October 2021.

But Amelia has said she lives in fear that when his sentence is spent in October next year, she will have no protection from being contacted in person or through social media.

The impact of violence she experienced meant she decided to move south of the border to England.

Speaking to The Herald following the launch of her campaign, Amelia said: "In the time since his sentencing, I have been aware that after his sentence is considered spent, which will be in October 2025, I will no longer have any legal protection that stops him from contacting me.

"When he was charged in 2019, he was banned from contacting me or approaching me. But in October when his conviction is spent, all of these conditions will become void.

"In the time since, I really have been forced to move away from Scotland after building a life there.

"It is something that I have tried to contest (the decision not to grant an NHO) but I have realised there is actually no avenue for me to do that.

"The provisions I have made to protect myself and to recover from the crime committed against me should never dictate that protection from the crown is not necessary. The conviction alone should be sufficient grounds for continued protection from the crown," she added.

"Nor should the idea that my abuser did not contact me whilst on bail subject to an interim interdict. On the contrary, this suggests to me that protective orders would be effective in their purpose."

"It has put a limitation on my life moving forward."

Draft rape sentencing guidelines

In a historic move, the Scottish Sentencing Council published the first ever proposals for draft sentencing guidelines for rape.

The proposals would provide details of aggravating factors including previous convictions, targeting a victim who is vulnerable, and whether a weapon was used.

It came in response to concerns that there was no justification or understanding of the sentences handed down in rape cases.

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A report commissioned by the Scottish Sentencing Council prior to the draft guidelines found survivors believed NHOs should be default and lifelong, but it was not addressed in the draft guidelines.

Rape Crisis Scotland welcomed the draft proposals but demanded mandatory non-harassment orders be introduced.

Amelia said: "It is a real loophole in the Scottish courts system and it leaves me feeling extremely vulnerable when that date rolls around, especially because my case was one where we were known to each other and we did have a relationship."

She added: "The prosecution service and the courts are not serving their purpose to deliver justice and protect victims of sexual offences."

"It really speaks volumes that the very few of us who do get these convictions (of rape), that do have substantial evidence, still aren't given any protection. 

"It's like we're used to secure the conviction and then immediately discarded.

"Whilst my abuser was able to appeal his sentence and conviction, I, like many other survivors, have no avenue to challenge this oversight, raising significant concerns about the effectiveness of current sentencing guidelines in safeguarding victims."

In her petition to the Scottish Sentencing Council, Amelia argues there is an "enormous disparity" between judges granting the orders.

"The guidelines evidently lack a uniform approach to protecting victims post-conviction and are being interpreted inconsistently by decision-makers, leading to like-for-like cases receiving 25 years plus protection or nothing depending solely on the judge allocated to their case," she added.

Sandy Brindley, chief executive of Rape Crisis Scotland said: “The Scottish Sentencing Council’s proposed sentencing guidelines for rape could be a positive step for survivors. But we need to see the guidelines go further in some areas. The guidelines could, and should, impose non-harassment orders as part of sentencing for rape.

“Survivors often tell us they are terrified of their rapist contacting them when they are released from jail. Non-harassment orders should be considered as part of sentencing to protect survivors and their families when convicted rapists are released."

The Scottish Sentencing Council has recently held a 12-week public consultation on the draft guidelines. 

A Scottish Sentencing Council spokesperson said: “The consultation responses are now being independently analysed, and this, along with the responses - where permission has been given - will be published in due course on our website.

"We would like to thank all those who contributed to the consultation, and each response will now be carefully considered as part of the wider guideline development process. This will include consideration of the views expressed in relation to non-harassment orders.”

Once the process has taken place, the draft guidelines will be presented to the High Court for its consideration. The guidelines will only take effect if approved by the High Court.