The shocking truth about Scots law and rape – Emma Bryson

Scots law contains a virtually unique obstacle to the prosecution of sexual offences, writes Emma Bryson.
The High Court of Justiciary is Scotlands highest criminal court, but does it give justice to rape victims? (Picture: Ian Georgeson)The High Court of Justiciary is Scotlands highest criminal court, but does it give justice to rape victims? (Picture: Ian Georgeson)
The High Court of Justiciary is Scotlands highest criminal court, but does it give justice to rape victims? (Picture: Ian Georgeson)

Two years ago, in March 2017, I was informed by the Crown Office that the man responsible for the rape and abuse I experienced for four years of my childhood would not be prosecuted.

It was the culmination of a year-long police investigation, during which a number of people who had been aware of the abuse at the time came forward to give statements on my behalf. It was widely known that the man responsible for abusing me also abused other young girls connected to the family.

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The police explained to me at the outset that corroboration was the key factor in determining whether or not a prosecution would be possible, but because I knew that documentary evidence existed in social work reports and medical records I felt relatively optimistic; when I was eventually told that the evidence didn’t meet the requirements for corroboration and that there would be no prosecution it was shattering.

I’ve learnt a lot about corroboration since then. I had to, because the decision not to prosecute didn’t make any sense to me.

The definition of the term corroboration means “to confirm or give support to a statement” and, in my case, that had been achieved from a number of independent sources.

To then be told that it was the wrong sort of corroboration felt as if the goal posts had been moved right out of the playing field, and the sense of injustice I felt was overwhelming; not only had my abuser escaped any consequences for his actions but no one had even bothered to explain to me what the requirements for corroboration actually were.

For those of you who, like me, have taken the term at face value, here is what corroboration means in the context of Scots law: two forms of evidence are required to corroborate every essential element of the charges. So in a rape case the following needs to be provided:

Two forms of evidence that penetration took place.

Two forms of evidence that consent was not given.

Two forms of evidence that the accused knew that consent was not given.

Two forms of evidence that it was the accused who committed the crime.

I wish I had understood that at the time of the investigation because I would have realised from the outset that there was no realistic prospect of success. It wouldn’t have stopped me from trying, but I would have been better equipped to manage my expectations so that the decision, when it came, would not have been so devastating.

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In the months afterwards I struggled to find a way forward. I had been told by both members of the police and the Crown Office that if the abuse had happened in England then there would have been a prosecution, because Scotland is unique in its narrow definition of corroboration and in England all forms of evidence would have been considered.

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It was shocking to me that all the evidence available in my case was completely disregarded. I’d done everything I possibly could to see my abuser bought to justice but in the end it was the law itself that prevented him from being prosecuted.

There was nothing I could do about it but equally I was unable to accept it, and I spent several months firing out emails and telling anyone who would listen about my experience in the faint hope that eventually someone might be able to help me.

In the end I was lucky; Rape Crisis Scotland put me in touch with two other women who had been through exactly the same experience, and in October last year we formed our campaign group, Speak Out Survivors.

We’ve spent the last six months trying to raise awareness of the way that the criminal justice system fails victims like us, and the response we’ve had so far has been largely positive.

These days there is a much better understanding of the impact that sexual offences can have upon victims, and childhood sexual abuse is no longer the taboo subject is once was. This has contributed significantly to the increase in reporting of such offences, both historical and recent.

Unfortunately there has been no corresponding increase in the number of prosecutions and this is due to the fact that, although the responses to victims of sexual violence have improved, the legal process for dealing with reported offenders has not.

In Scotland last year, 2,255 rapes and attempted rapes were reported to the police. Of those, only 247 were prosecuted. The vast majority never made it to court, and corroboration is not the only factor involved but it’s the measure by which each case is assessed. If the right number of boxes aren’t ticked, then it doesn’t matter how much evidence is available, there will be no prosecution.

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Tomorrow evening, myself and my fellow campaigners will be speaking at an event at the Scottish Parliament which has been arranged for us by Rona Mackay, MSP. We’ll also be showing a short film we made which we hope will help people to understand how the current definition of corroboration fails victims of sexual crimes and why it urgently needs reform. We’re looking forward to sharing our views with MSPs from all parties, and we hope that in doing so our experiences might go some way towards improving the system for victims in the future.

It has to be a sign of progress that more victims are prepared to report serious sexual offences than ever before, but the stark fact remains that 89 per cent of them will never see their offender prosecuted. Greater understanding of victims’ experiences is no substitute for justice, and we cannot accept that our justice system fails the vast majority of victims because of an ancient law that prevents it from taking appropriate action.

The stated purpose of a criminal justice system is to effectively deliver justice, and yet certain aspects of Scots law are clearly incompatible with this objective; there can be no stronger argument for reform than this.