The Appeal Court ruled that there would no longer need to be evidence from two separate sources to prove penetration in rape cases.
On Wednesday afternoon seven appeal judges ruled that evidence of a victim in a distressed state to a witness could be used to corroborate that a rape took place.
The new ruling could bring hundreds of unprosecuted Scottish sexual offense cases to court. The chief executive of Rape Crisis Scotland, Sandy Brindley, hailed the new ruling as “seismic.”
Rape Crisis Scotland said that the need for corroboration is one of the main reasons why rape cases do not make it to court in Scotland. “Most rape cases never make it to court. In many cases, this is because of the requirement in Scotland for corroboration. Up until now, this has meant that every piece of evidence must be backed up by another piece. This is an issue which particularly affects sexual crime cases,” Brindley said.
Previously, corroboration required prosecutors to provide two pieces of evidence that a crime occurred in the form of a witness or forensic evidence. This ruling makes it very difficult for rape cases to be prosecuted as there is such a short timeframe for a forensic medical exam, especially if a victim has delayed reporting the crime to the police. It is also very rare for rape cases to be witnessed by someone other than the victim and the perpetrator.
According to Rape Crisis Scotland, out of 2,343 reported rapes and attempted rapes, there were only 300 prosecutions and 130 convictions in Scotland from 2019 to 2020.
The Lord Advocate, Dorothy Bain KC, urged the Appeal Court to look at the issue earlier this year stating that the Scottish legal system was “out of step” with other countries in sexual assault cases. In England, if a woman is raped and does not undergo a forensic medical exam, the case can still get to court, which is far less likely to happen in Scotland.
Another feature of Scots law that campaigners believe prevents sexual assault convictions is the “not proven” verdict, which the Scottish government plans to scrap in a new criminal justice bill.
The legal implications of a not proven verdict are the same as a not guilty verdict as the acquitted is innocent in the eyes of the law. The not proven verdict is disproportionately used in rape cases in Scotland making up 44% of rape and attempted rape acquittals compared with 20% for all crimes and offenses, according to Rape Crisis Scotland.
Bain supported the ruling: “Today’s decision has the potential to transform the way we prosecute all offenses, particularly sexual offenses, and will improve access to justice for more victims.”
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