A mother-of-one, who was left “devastated” by a Crown decision not to prosecute, sued striker David Goodwillie and his then Dundee United colleague David Robertson claiming that they raped her at a flat in Armadale, in West Lothian, after a night out in nearby Bathgate.
The woman said she could not remember what had happened since she was in a Bathgate bar until she woke up in the strange flat the following morning.
The 30-year-old originally sought £500,000 in compensation, but damages were later agreed at £100,000 in the civil action at the Court of Session in Edinburgh.
The woman maintained that she was incapable of giving free agreement to sex because of her alcohol consumption, but Goodwillie (27) who now plays with Plymouth Argyle, and Robertson claimed that intercourse had been consensual.
A judge said: “Having carefully examined and scrutinised the whole evidence in the case, I find the evidence of the pursuer (the woman) to be cogent, persuasive and compelling.”
Lord Armstrong said: “In the result, therefore, I find that in the early hours of Sunday January 2 2011, at the flat in Greig Crescent, Armadale, both defenders took advantage of the pursuer when she was vulnerable through an excessive intake of alcohol and, because her cognitive functioning and decision making processes were so impaired, was incapable of giving meaningful consent; and that they each raped her.”
The judge said that he found neither Goodwillie nor Robertson to be credible or reliable on the issue of whether they had a reasonable or honest belief that she was consenting.
He rejected evidence relied on by the players that the woman was not particularly affected by alcohol and was no more drunk than anyone else in the company they had been in that night.
Lord Armstrong there was evidence of flirtation between the woman and Robertson earlier in the evening, but the judge added: “The mere fact of sexual attraction does not preclude rape.”
The judge said of former Blackburn Rovers and Aberdeen striker Goodwillie: “The first defender was not an impressive witness. Particularly in relation to his assessment of the pursuer’s condition, his evidence was given with a view to his own interests rather than in accordance with the oath which he had taken. I did not find his evidence to be persuasive.”
Lord Armstrong said: “Like the first defender, I assessed the second defender as a witness who was being selective as to what he was prepared to tell the court and whose evidence, directed as it was entirely to his own interests, was partial and partisan.”
“He did not present as a witness who was being entirely candid. On the significant issues arising in the case, I did not find his evidence to be credible or reliable,” he said.
Lord Armstrong said that prior to the incident the woman had enjoyed life, but her life changed following the decision not to proceed with a prosecution.
She was told by Crown Office in July that year that they were not going ahead with criminal proceedings.
Lord Armstrong said: “She found that decision difficult to understand and had felt that she had not been believed.”
“She felt that her life had been destroyed by something which had happened although, because of her lack of memory, she was not fully aware of what it was that had caused that effect,” he said.
She had experienced suicidal thoughts and it was only last year that she felt comfortable forming an intimate relationship again.
Lord Armstrong said: “She maintained emphatically that she would never voluntarily have had sexual intercourse with two men simultaneously, and that she had never ever done that before. As she put it, she would never ever agree to do that.”
The judge said the woman’s memory loss was best explained by “the phenomenon of alcoholic blackout”.
He said that on the basis of expert evidence, eyewitness testimony and forensic findings of the woman’s blood alcohol level he held that during the period the woman was in the flat she “lacked the level of cognitive functioning necessary to make reasoned decisions and consequently lacked the ability to give meaningful consent by free agreement”.
It was only in the weeks after the rape that the woman knew with certainty that intercourse had taken place after DNA evidence was obtained from swabs taken from her.
The woman told the court that she had given a statement to the Crown in May 2011 and said: “It was set to go to court.”
But she was later informed there was to be no prosecution and said: “I kind of felt like they didn’t believe me, but I was really quite confused, upset. I was actually devastated.”
During her evidence, which was given in a court closed to the public like a rape trial in the High Court, she said she was later awarded criminal injuries compensation.
She said that she had found herself naked and in pain after the incident at a flat in Greig Crescent, in nearby Armadale.
She said she had gone out for the evening for a drink with a friend on New Year’s Day in 2011 but had no recollection of leaving a pub for a nightclub in Bathgate.
She remembered waking the next morning in strange surroundings and said: “I seemed to be running about the house in a panic. I ran into every single room to see if I could make sense of my surroundings.”
Her counsel, Simon Di Rollo QC, asked her what she was wearing and she replied: “Nothing. I was naked, but I didn’t realise that until I was in the kitchen.”
She said: “I just felt sore. I felt sore inside as if something had happened to me, but I couldn’t say what it was. I felt a lot of pain inside.”
“I kind of thought something must have happened to me but I had no idea what. I didn’t know where I was,” she said.
She saw two women and asked where she was and was told it was Greig Crescent and that she was in Armadale.
Contact was made with a brother to come and get her. She told the court: “I didn’t know if someone was coming for me.”
The woman said she found articles of her clothing in the flat “stuffed down” the side of a bed. She added: “My pants were never recovered.”
Before the rape she had gone out with a friend to The James Young bar in Bathgate drinking Jack Daniels and coke, before moving onto the Glenmavis Tavern, known as Smiths, where Robertson was. She later went on to Chalmers nightclub but had no recollection of it and no memory of anything significant until the following morning.
Goodwillie had gone to join Robertson in Bathagte after the pair had played for Dundee United against Aberdeen on January 1 during which he scored an equaliser. He maintained that he did not think the woman was too drunk to consent to sex.
But a security firm employee working at the nightclub told the court that the woman was in need of an ambulance.
Gayle McGregor said: “She wasn’t in control of herself. Her eyes were rolling in her head. She couldn’t stand up straight. She couldn’t speak to me properly. She wasn’t compos mentis.”
In the action it was said the players offered her a lift home in a taxi, but the driver was rewquested to drop all three at the flat in Armadale.
League Two Plymouth said in a statement: “We note today’s judgment from the Court of Session in Edinburgh regarding David Goodwillie.
“We await the full report, which we will consider in detail before making any comment.
“Until such time, David Goodwillie will not be selected to play for Plymouth Argyle.”
Robertson currently plays for Scottish League Two side Cowdenbeath.
• Rape Crisis Scotland runs a free helpline every day, 6pm to midnight, on 08088 01 03 02