It is nearly eight years since Denise Clair woke up naked and alone in a strange house in Armadale, West Lothian, after a night out. All that time, she has been fighting to bring her alleged attackers – footballers David Goodwillie and David Robertson – to some kind of justice.
It’s been a bitter, uphill struggle; though several witnesses were prepared to testify Clair was drunk to the point of senselessness on the night in question, the Crown Office insisted there was insufficient evidence for a criminal prosecution; distraught she hadn’t been believed, she waived her anonymity to pursue a civil case.
This decision took a huge emotional toll: the publication of intimate details of her life and an outpouring of abuse on social media in which she was called a “witch, a gold-digger and a would-be wag” was a crushing blow. But in January, Lord Armstrong found in her favour, ordering Goodwillie and Robertson to pay £100,000 in damages for having raped her.
At last, Clair thought she had closure; but then Robertson and Goodwillie appealed and last week she suffered the further indignity of having rival lawyers argue over the testimony of a neighbour who insisted the noises coming from the house were consistent with “normal” sex.
Consider this, for a moment: though Armstrong considered Clair to be a credible witness, her assailants could be exonerated on the testimony of stranger who heard intercourse taking place through a brick wall. Then ask yourself why anyone would put themselves through such an ordeal.
Clair’s experience is an indictment of our flawed justice system. A less resilient, less determined woman would have given up long ago; only an all-consuming desire to have her ordeal acknowledged can have driven her on.
Many victims are fuelled by that same hunger for justice. Yet last week it emerged a large number are still disengaging from the judicial process because “the trauma and degradation” of pursuing a case is more distressing than seeing their assailant walk free.
Despite sexual offences having been high on the political agenda for a decade, and former Lord Advocate Elish Angiolini instituting a series of reforms, victims told the Inspectorate of Prosecution in Scotland (IPS) that long delays, too much legal jargon, poor communication and aggressive cross-examination were compounding their distress.
One woman said the experience of going through court had been worse than the rape itself, and another that, despite securing a guilty verdict, she would not go through the process again.
Ironically, some of the current problems have been caused by a more enlightened approach. Previous measures, particularly a wider definition of rape and more proactive policing, have led to a rise in the number of cases at a time of funding cuts.
While the rates of all other crimes are falling, the number of sexual offences has risen every year since 2007; indeed sexual offences now account for 75 per cent of the Crown Office and Procurator Fiscal Service (COPFS) workload.This has placed a strain on the system. Trials often take place up to two years after an offence has been reported with court dates changed frequently so victims who have been psyching themselves up are let down at the last moment.
There are other, less explicable deficiencies too. Despite years of highlighting the need to make the process less arcane, not enough effort is being taken to demystify its workings or to keep victims informed with how their case is progressing.
Worse still, if the case goes to trial, victims continue to face aggressive cross-examination. Questions on prior sexual history are outlawed (other than in exceptional circumstances), but some still slip under the wire. Other rape complainants are quizzed on their clothes, their make-up and even their sexuality.
Yesterday, I spoke to a 22-year-old woman whose attacker was recently convicted of rape. During her two days in the witness box she was asked about the dress she had worn and how much she’d had to drink. She was – she told me – repeatedly called a liar and the fact that she’d put on some perfume was held up as evidence of an interest in physical contact.
One of the things she found most distressing was the way she was confined to a small room while her attacker had the run of the court. “I only went to the toilet once in two days because I was so scared I would bump into him,” she said.
The IPS has come up with some recommendations including quicker, more focused handling of cases and better support for victims. However, while welcome, such measures are merely tinkering round the edges of a system in need of a dramatic overhaul.
What needs to be tackled as a matter of urgency is the adversarial nature of proceedings. As part of the Evidence and Procedure review set up by the Scottish Courts Service, Lord Carloway suggested rape complainants should be videoed giving and being cross-examined on their testimony as soon as possible after reporting the incident to avoid them having to appear in court.
One potential pitfall with this idea, which has been put out to consultation by the Scottish government, is that defence lawyers may wish to re-examine the woman in the light of fresh evidence emerging; but it would surely be possible to introduce a mechanism whereby they could apply for a second interview to be conducted under the same conditions. Such a move would take some of the stress out of the process, making it less likely rape complainants would disengage.
While the existing system prevails, judges should be encouraged to intervene when defence lawyers ask irrelevant questions on clothing, make-up and flirtatious behaviour in an attempt to tap into the prejudices of jury members.
Perhaps, too, in the light of such prejudices and low conviction rates, it is time to have a debate about whether or not jury trials are the best way to deal with sexual offences charges. Of course, judges may be just as susceptible to rape myths as ordinary members of the public, which is why it is important to keep on countering those myths and talking about consent at schools, universities and via public information campaigns.
With the Harvey Weinstein scandal causing a similar mass-triggering to that unleashed by Jimmy Savile, sexual offending is likely to dominate the headlines for some time. We should capitalise on this “moment” to improve the lot of rape complainants who have already endured shoddy treatment for far too long.