An affront to women. A disgrace to Scots justice: scandal of rape victims’ sexual history paraded in our courts
CAMPAIGNERS CALL FOR URGENT REVIEW OF LEGAL RULES AFTER CHED EVANS CASE IGNITES DEBATE AROUND TREATMENT OF WOMEN IN COURTROOMS. EXCLUSIVE REPORT BY KARIN GOODWIN
SCOTTISH victims of rape are being subjected to traumatising cross-examination in court that questions their credibility by presenting claims that brand them promiscuous, deceptive and even mentally ill, according to leading academics and campaigners calling for an urgent independent review into how a woman’s sexual history is used in jury trials.
The call comes after footballer Ched Evans was cleared on Friday of raping a 19-year-old women in a hotel room. Though he was found guilty in 2012 the conviction was quashed. During the retrial two men, both of whom knew Evans, claimed they also had sex with her and described encounters similar to that of the 27-year-old footballer’s own account.
Yesterday former UK solicitor general Vera Baird said that the evidence should not have been allowed and claimed the case had set things back for women by “about 30 years”.
Although it is meant to be difficult to introduce a woman’s sexual history in a rape case in Scotland, existing legislation does allow for it. Under a 2002 law, lawyers have to apply to the court to request permission to use sexual or character history in rape cases and prove it is relevant and not prejudicial.
Available data suggests such requests are routinely granted. From January to March this year 43 out of 57 applications were granted in full and a further five in part. Details that can be requested include details of sexual practices including former partners and use of sex toys, contraceptive history, involvement in prostitution, drug and alcohol use, previous convictions and medical history including use of depression medication or therapy.
Professor Michele Burman, a leading expert on violence against women at Glasgow University, said an urgent review was needed. Her latest research found that details of a woman’s sexual history were still being used in sexual offence trials “with some frequency”. Applications to introduce sexual history or character evidence were made in 72 per cent of rape trials and granted in 93 per cent of cases. Of those, one in five related to the sexual history of alleged victim.
“Sexual history and/or character evidence was a strong feature of the majority of trials,” she said, adding: “Individual women going through the criminal justice system report that they are being asked questions about their sexual history and character... Unfortunately this kind of evidence is often designed to undermine and challenge the credibility of a complainer by suggesting she is ‘that kind of woman’ who is promiscuous, has different sexual partners and is ‘up for sex’ indiscriminately.”
Sandy Brindley, national co-ordinator of Rape Crisis Scotland, said the treatment of the women in the Ched Evans case made “a mockery” of efforts to encourage women to report rape and said a review was needed to renew confidence in the courts.
She said: “We need an urgent independent review into what kind of evidence is being used and in-depth analysis to ensure that we are protect- ing women in Scotland. The law in Scotland has the potential to provide strong protection from unnecessary intrusive and degrading questioning. We need to know if it is working. If it isn’t, we need to look again at what we can do to ensure that women in Scotland who have been raped can have confidence in the justice process.”
Rape Crisis recently supported a victim of domestic abuse who was refused Legal Aid to fight the decision to grant her alleged attacker’s lawyer accessing her medical records. The decision by the Scottish Government to refuse Legal Aid was overturned by Senior judge Lord Glennie in February. At the time, Sarah Scott, who was raped in 2011 – aged 19 – by Adrian Ruddock, spoke out in support of the woman, describing how details of her own self-harming at 13 in response to bullying, something not even her own parents knew about, was revealed in open court.
Though Brindley claimed Police Scotland has transformed the way rape is investigated, she said women continue to report “traumatic and at times highly violating” experiences of cross examination with many saying they were unwilling to put themselves through a rape trial for fear of having personal histories exposed in court. “We appreciate that evidence needs to be tested, but at times what women
Past history with the accused, including sexual history Sexual relationships with third parties Current or past history of involvement in prostitution Contraceptive history Medical, psychological or psychiatric history, eg, any psychiatric diagnosis she has been subject to in the past, previous or current use of anti-depressants, any history of self harm
Prior allegations of rape or sexual abuse are put through in rape trials seems unnecessarily cruel and degrading,” she added. “This [use of sexual and character history] doesn’t happen in the same way for any other crime.”
Dr Marsha Scott, chief executive of Scottish Women’s Aid, and UK expert on the European Observatory on Violence against Women, also backed the calls for a review.
“When the law doesn’t do what it says on the tin we have to fix it,” she said. “The defence is being allowed to access incredible amounts of private information. The way it can be used in court is another form of victimisation. We need really robust information about who is requesting this information and how it is being used.”
A Scottish Government spokesperson said it was planning to start research into how the law was being used. “There are longstanding safeguards that mean the court must give explicit approval for character and past behaviour evidence to be used in sexual offence cases,” she said. “Without the court’s approval, the defence cannot seek to introduce such evidence. It is appropriately a matter for the court in any given case to make a decision on the admissibility of such evidence if an application is made.”
The Sunday Herald contacted the Scottish Crown Office on Friday but did not receive a comment. Alcohol or drug use Application for criminal injuries compensation Previous convictions or arrests Dishonesty – for example, working and claiming unemployment benefit Homelessness Behaviour after alleged offence, eg, maintaining contact with the accused; displaying no visible signs of distress
Sexual behaviour after the incident