Leader comment: Rape should always be a criminal offence

A landmark decision to award £80,000 in damages for rape '“ after Stephen Coxen was cleared by a not-proven verdict '“ underlines the need for further reform of the criminal justice system.

Stephen Coxen was ordered to pay damages after a civil court decided he had raped a woman known as Ms M in St Andrews (Picture: Jane Barlow/PA Wire)

The decision by a civil court to order a man cleared by a criminal court of raping a woman to pay £80,000 in damages is a landmark moment for Scottish justice. But it is a most unsatisfactory one.

In 2016-17, there were 1,878 complaints of rape or attempted rape made to police but just 98 resulted in a conviction, so it is obvious that most rapes go unpunished.

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Rape Crisis Scotland praised the woman in question, known as Ms M, for bringing the case, but it also pointed out that she should “not have had to go through the ordeal of two trials”. The charity said it expected rape survivors would now increasingly turn to the civil courts “in a desperate search for justice” unless there were “radical improvements” to the way criminal complaints are dealt with. It is in no-one’s interest for such a serious matter as rape to be decided in a civil court. Miscarriages of justice do occur and they are significantly more likely when the issue is decided on the balance of probabilities, rather than beyond reasonable doubt.

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Also, prosecuting a rape is the duty of the state; it is utterly immoral for any society to effectively wash its hands of such a heinous crime and leave it to the victim to pay for justice out of their own pocket. Ms M does not expect to see any of the £80,000, saying the sum is likely to be consumed by legal costs.

Her only satisfaction may end up being that Stephen Coxen, previously acquitted under the controversial not-proven verdict, is now the subject of a court ruling that he raped her. But someone who is a rapist should be sent to prison for a long time, not allowed to walk the streets as a free man.

However, despite the problems highlighted by this case, there is a potentially significant benefit. 
While efforts have been made to increase the number of the rape convictions, it has still been falling as the number of sexual offences has risen. It is almost as if men who lack a sense of morality realise they can get away with it. But they now know that even if their crime cannot be conclusively proved, they may still pay a price.

In Ms M’s case, the sheriff said the victim’s distress was “evident and, so far as these things can be judged, seemed to me to be entirely genuine”. The odds are stacked against the victim in a criminal court, but it may prove that the situation is reversed in a civil one. It can only be hoped that this will act as a powerful deterrent.