Rape: Taking civil action to ensure justice

KATY had just started to rebuild her life after months of trauma when the Crown Office told her it was dropping the case against a man she claims raped her. The 25-year-old had been on a night out with friends on New Year’s Day when she bumped into a man – now a public figure in Scotland – whom she knew vaguely from school. She says the last thing she remembers is reaching out to take a drink.

The next day, she woke up in a strange flat, naked and feeling sore. Convinced her drinks had been spiked, she went to the police.

For seven months she was told she had a good case, but eventually the Crown decided there was insufficient evidence to pursue the prosecution. Her ordeal was exacerbated by an internet hate campaign waged against her by fans of the man – for legal reasons he cannot be named – who blamed her for holding back his career.

“I had gone back to work part-time and, on the understanding the case would go to court, I felt good. Well, I didn’t feel great every day, but I knew what my focus was, I knew the aim,” says Katy. “Now I am completely devastated. I struggle to do day-to-day things and I don’t go out any more at weekends.

“It impacts on every bit of my life, my family’s life – they don’t want to see me like this, but nobody can help me, because the people who were supposed to help have destroyed my life all over again.

“Basically, my life was sitting on someone’s desk, and they binned it.”

Katy’s story is a familiar one. By its very nature, rape is a difficult crime to prove. Most cases don’t reach court and, of those that do, a disproportionate number end with acquittals or not-proven verdicts. Last year, figures from Rape Crisis Scotland suggested the country’s conviction rate was at a 25-year low, with only 25 reported rapes resulting in guilty verdicts.

Such statistics leave women like Katy feeling let down. But now she and two others are planning to take groundbreaking civil action. Unable to get closure, they plan to sue their alleged attackers – or, in one case, a local authority that the victim holds reponsible for putting her in danger – for damages.

They believe this could bring them the justice they feel they have been denied because in a civil court, the burden of proof is lower. While in criminal courts, guilt has to be established “beyond all reasonable doubt”; in a civil court it is decided “on the balance of probabilities”.

All three women know that – if the cases go all the way – they will eventually have to waive their right to anonymity, but are willing to do so in order to have their voices heard.

Katy plans to sue her attacker on the grounds that she had no capacity to consent through drink or drugs.

But Katy is angry that, while she struggles to cope, her attackers career in the public eye continues. “I am not ashamed. I want this to have as much exposure as humanly possible,” she says.

Patricia knows how Katy feels. She plans to sue the showbusiness agent and former heroin dealer Jonathan Tolland after a jury returned an 8-7 not proven verdict on a charge of raping her at a house in Glasgow in February 2010.

The 27-year-old woman faced a horrendous ordeal at the hands of the justice system; she had to give evidence twice after she inadvertently revealed Tolland’s previous convictions to the jury while answering a question from the Crown, prompting his defence lawyer to demand and win a second trial. The police also admitted there were failings in an investigation into a fire which destroyed her £20,000 Audi hours after she gave evidence.

Then, finally, her criminal injuries compensation was halved to £5,500 because she had six points on her driving licence.

“The legal system let me down every step of the way,” she said, after the verdict.

And then there’s Fiona. She was raped by a taxi driver who was supposed to be taking her home after a night out in Edinburgh in August 2008.

Diagnosed with post-traumatic stress disorder, she still sees a psychologist and suffers frequent flashbacks.

Her injuries meant she had to visit a gynaecologist for 18 months after the attack, while medication given to treat her problems was so strong it left her with damaged kidneys.

After picking her up outside a nightclub, the taxi driver, an illegal immigrant, took her to an industrial estate, put an object she assumed to be a knife at her neck and wrapped some kind of material around her head before repeatedly attacking her, then throwing her out of the car.

She was found by the police and spent six days helping them in their investigation, retracing routes, providing a description of the car and looking at photos of potential suspects.

But, by the time the police went public with the information, the man, Ibrahim Selman, had fled to Sudan.

Before the attack, Fiona, 29, had a successful career in car sales, earning £30,000 a year. Afterwards, she was a wreck.

“I was a really strong woman,” she says. “I worked on cruise liners. I worked abroad, I would go anywhere. Now I won’t go out in the dark; I won’t even walk my dog after a certain time of night.

“I loved my job. I was good at it. I earned good money, but I have had to give it up. I tried to go back, but I kept falling flat on my face. It got to the stage where I wanted to kill myself because of the flashbacks.

“But I never got an apology from anyone. I have literally been told: ‘That happened to you; on you go, get on with your life.’”

One of the things that distressed Fiona most was the implication early on that the car she had got into was not a “real” taxi. That was not true. The car, a Volkswagen Passat, had taxi badges. And, although Selman’s licence had been revoked when his immigration status was uncovered, it seems he was still working as a taxi driver.

Since the UK has no extradition treaty with Sudan, Fiona knows she will never see her attacker tried in a criminal or civil court. But she recently raised a court action against Edinburgh City Council for failing to enforce the revocation of the licence.

If private investigators can uncover the name of the private hire company he was working for, then she will sue it too.

“For so long I thought, you know, maybe if I had had a jacket on, maybe if I hadn’t got into that car… But the reality is that’s what you are supposed to do when you leave a nightclub. You’re not meant to walk home. You are meant to get a taxi and I got into a proper taxi,” Fiona says.

“What success in the civil courts would give me is the sense that someone has taken responsibility; that someone has said, ‘Yes, that was our fault. That shouldn’t have happened.’ And that they would recognise that something has to change.”

Although suing for damages in rape cases is groundbreaking in the UK, the civil courts have been used to seek redress in controversial murder cases on a handful of occasions.

In 1995, the parents of murdered Hamilton teenager Amanda Duffy were awarded £50,000 after raising a civil action against Francis Auld three years after a jury returned a not proven verdict on a murder charge. Civil action was also taken against several men suspected of involvement in the Real IRA bombing of Omagh in 1998 and has been used successfully in rape cases in the United States.

Lawyer Cameron Fyfe, of Drummond Miller, who is taking the three cases, says his clients are showing great courage and determination in proceeding with the court actions.

“It seems to me that more and more victims of rape are turning to the civil courts, having felt let down by our criminal justice system,” he says. “My clients are not concerned about receiving compensation. What they want is a court to acknowledge that they have been raped.”

Rape Crisis Scotland would prefer to see all rape cases heard in the criminal courts, but with the latest figures suggesting only 10 per cent of reported rape is prosecuted, they say civil action could prove a viable alternative.

“Certainly, from women we have supported in the past, almost invariably what they are looking for is justice, and what that represents is someone is saying: ‘We believe you, and what happened to you was wrong,’” says national co-ordinator Sandy Brindley. “I think the idea of taking civil action is really quite groundbreaking, and given the inherent difficulty there seems to be in bringing rape cases to court, I think it is an option that needs to be explored.”

Taking a civil case is not necessarily an easy option. Women who choose to do so face the humiliation of revealing initimate details about the attack. For these women however, the prospect of having to relive their version of events again is no deterrent.

“I don’t know if I will ever get over the fact that I never saw the man I believe raped me tried in a criminal court,” says Katy. “But a civil court ruling would be a blessing. I am not an attention-seeker, I used to live a really quiet life, but at this stage, I would do absolutely anything for justice.”

• The names of the three women have been changed to protect their identities