Reform of law may boost rape convictions

• Possible rape law reform could help boost conviction rates

• Only 4 percent of recorded rapes were proven in court in 2002-3

• Reforms may remove need for corroboration and redefine 'consent'

Key quote

"The proposals in themselves are not going to address all our concerns about the justice system and how victims are treated, but I think it is a very good start. We fully support the plan to broaden the definition of rape. It is about time that we had a definition which reflects the experience of women and men in Scotland." - SANDY BRINDLEY, RAPE CRISIS SCOTLAND

Story in full LAW reformers are prepared to consider dropping the need for corroboration in some rape and sexual offence cases: a radical change in the Scottish criminal justice system which could help boost conviction rates.

The need for corroboration of a victim's evidence, traditionally a crucial element, might be removed if the Scottish Law Commission were persuaded by the public.

A recent investigation by The Scotsman revealed only 4 per cent of reported rapes in Scotland were proved in court in 2002-3.

In a range of issues put forward yesterday for debate, the commission also suggested a new definition of rape, to include male victims and to widen the kind of attack which constitutes the offence, and said that the meaning of "consent" should be spelled out to juries.

Sandy Brindley, national co-ordinator of Rape Crisis Scotland, welcomed the package, while sounding a cautionary note in relation to corroboration. "The proposals in themselves are not going to address all our concerns about the justice system and how victims are treated, but I think it is a very good start," she said.

"We fully support the plan to broaden the definition of rape. It is about time that we had a definition which reflects the experience of women and men in Scotland.

"The corroboration aspect is an interesting one, and we do not have a definite view on it at this stage. It may not necessarily have a huge impact on the conviction rate, because if you look at England and Wales, they do not have a legal requirement for corroboration and their conviction rate is almost as low as ours. It is about 4 per cent in Scotland and 5 per cent in England and Wales.

"There are so many facets as to what the reasons could be for a low rate, and it is difficult to know for sure because we are not allowed to do research with juries. Maybe it's because too much prejudicial sexual-history evidence, looking at a woman's past, is still getting in, and in Scotland we know that a lot of cases do not make it to court in the first place."

Currently in Scotland, more is required for a conviction than the woman's word against that of the man. Physical injuries are not always inflicted, so the woman may not have cuts and bruises which would back up her account. She may have been so traumatised that she exhibited no distress to the first person to meet her after the incident and DNA evidence might show simply that the accused and the complainer had sex, not that it was with or without consent.

Professor Gerry Maher, QC, who led the law commission's project and introduced its Discussion Paper on Rape and Other Sexual Offences, said the commission was inclined to the view that there should continue to be a requirement of corroboration, but no concluded view was reached.

"One reason why rape and other sexual offences may be difficult to prove is the need for evidence to corroborate the complainer's own evidence. We have asked the radical question of whether, in the context of sexual offences, we could perhaps take the bold step of abolishing the corroboration requirement," said Prof Maher.

"We have set out the arguments for and against and we are simply asking a question at this stage. It is for consultation.

"Undoubtedly, corroboration helps in the protection of accused persons from wrongful convictions. But we accept that in the context of sexual offences, very often these offences occur simply when there is not any corroborative evidence at all. They occur in private, there are no eye-witnesses and in many cases there is no physical evidence.

"We think it is worth putting into public debate whether corroboration can be removed in relation to sexual offences."

The commission points out that in systems which do not require corroboration, other safeguards are built in for the accused. In England and Wales, for example, at least ten people from a jury of 12 must be in favour of a guilty verdict. In Scotland, it can be by a simple majority of eight to seven in a jury of 15.

"As with the rest of our paper, we are looking for reaction not simply from the professionals, but from the public," added Prof Maher. "First and foremost we are trying to bring clarity to this area of the law. The present law is, in many ways, unclear. This is not law for the lawyers... this is law for everybody, and everybody should be able to understand what the law allows you to do and what the law forbids."

The commission is also raising the possibility of widening the definition of rape. Currently, rape is defined as a man having sexual intercourse with a woman without her consent, regardless of whether or not force was used. Officials propose that the term "rape" should be retained but its meaning widened. Where possible, the law would not be specific to men or women, either as perpetrators or victims. And existing homosexual offences would be replaced by offences which were neutral as to gender and sexuality. There would also be new offences of sexual assault by penetration and sexual assault by touching.

"It is an astonishing fact that, although consent is such a key part of the law of rape and other sexual offences, the law does not define consent. It leaves it to the jury. We think that is wrong," said Prof Maher.

"What we are suggesting is a broad definition of consent - such as 'free agreement' - and examples of where there is no consent. We think there is no harm in the law being seen to make a statement."

'Justice system prolongs our humiliation'

WHEN Juanita Berry heard that the laws relating to rape were to be reconsidered, she lost no time in contacting the Crown Office.

Three years ago, the 38-year-old accountant from Fife alleged that she was raped after being given a "date-rape" drug at a party.

The case never made it to court.

Like many women, she believes that she was failed by the legal system and failed by the police but, unlike most, she took the decision to speak out about what happened.

After hearing about the law review, Ms Berry immediately wrote to Professor Gerry Maher, who is leading the consultation, to urge him to listen to people like herself. "I am hoping that the law review will make prosecutions easier," she said.

"We have a very bad track record at the moment of cases even getting past the police. In light of my personal experiences, it is not any wonder that four out of five women don't report being raped.

"The justice system only prolongs the humiliation," said Ms Berry.

In cases such as her own, where a date-rape drug may have been used, she believes that the redefinition of consent could be crucial.

"It is important that consent is defined, so that everybody has a clear idea of what consent is. In my case, that could have helped. Consent is saying: 'Yes, I want to do this'. If you are not in any state to do this, that is not consent.

"Because I couldn't remember not consenting, that meant there was a belief I did consent in the eyes of the law."

Ms Berry also believes that there is a good case for reconsidering the principle that any allegation of rape must be backed by corroborative evidence.

"At the moment, it is very much left to the victim to prove that they are telling the truth.

"The law favours the perpetrator and anything that can be done to redress the balance of power will be a good thing."

Since the incident, Ms Berry has met high-ranking police officers in Fife to discuss how police can improve the way they respond when allegations of rape are made.

"I now understand that fighting was my way of surviving.

"It is three years on and I am still suffering the consequences.

"I am a single mum with three children and I had to keep going - so I kept going by fighting."

She hopes others who have experienced rape or sexual assault will also come forward and give their views.

She said: "At the end of the day we are the experts. We know where the law falls down and what needs to be done to make it work for us."