Woman wins damages from man cleared of raping her
Legal first as sheriff awards £80,000 following civil court case
A woman has been awarded £80,000 in damages in a landmark civil case against a man who had previously been cleared of raping her. The woman, who cannot be named for legal reasons and is referred to as “Ms M”, sued Stephen Coxen, accusing him of raping her in St Andrews, Fife, after a night out in September 2013.
Coxen, of Bury in Lancashire, denied the charges and in November 2015 a jury acquitted him on a not-proven verdict in a criminal trial.
A civil case, believed to be the first of its kind in Scotland, was raised at the Personal Injury Court in Edinburgh over the incident and Sheriff Robert Weir QC ruled that it was rape, with £80,000 to be paid in damages to the woman.
In his written judgment, Sheriff Weir said: “Mr Di Rollo [the woman’s lawyer] invited me to conclude that the evidence for the pursuer was cogent, compelling and persuasive. I agree with that characterisation of the evidence.
“I therefore determine that at some time between 2am and 2.30am on Saturday September 14 2013, at [the address], the defender took advantage of the pursuer
when she was incapable of giving meaningful consent because of the effects of alcohol, that he continued to do so even after she manifested distress and a measure of physical resistance, and that he raped her.
“Accordingly, I shall grant decree against the defender in the agreed sum of £80,000 with judicial interest to run from 21 September 2018 until payment.”
Sheriff Weir ruled the woman was drunk, “resulting in a lack of capacity to make free agreement”.
He described her as a “credible and reliable witness”.
The sheriff added: “She gave her evidence in a way which I found convincing on all of the material points.
“At times in her evidence the pursuer became emotional. I found it impossible to conclude that this manifestation of emotion was anything other than a genuine response to the recounting of traumatic events from her recent past, and in particular the night of 13/14 September 2013.
“Her distress was evident and, so far as these things can be judged, seemed to me to be entirely genuine.”
The sheriff said he has “reservations” about Mr Coxen’s evidence in the civil case.
He said: “The paucity of detail in his description of the night actually extended to the of his arrival in St Andrews, and what he was doing before reaching the Lizard Lounge late on that Friday night.”
Simon Di Rollo QC, who represented the woman during the civil case, said following the ruling: “The pursuer is an extremely courageous woman.
“It is understandable that she found it impossible to come to terms with the verdict of the jury in the criminal proceedings. Although the findings by the sheriff in these civil proceedings are of assistance, there can be no doubt that her experience of the criminal justice system was unsatisfactory.
“Unfortunately, that is not as unusual as it should be. I think that everyone must strive to ensure that, so far as is possible, others in the future do not feel as let down as she did.”
Sandy Brindley, chief executive of Rape Crisis Scotland, said she expected to see more women turning to the civil courts in a “desperate search for justice”.
She said: “This is a landmark judgment, and testament to Ms M’s courage and tenacity in seeking justice.
“While this is a victory for her, she should not have had to go through the ordeal of two trials to search for some form of justice.
“We are aware Ms M feels let down by the criminal justice system. This is a feeling echoed by many, many rape survivors we are working with.
“Unless there are radical improvements to how the Scottish criminal justice system responds to rape, we anticipate seeing more and more women turning to the civil system in a desperate search for justice”.
Last year, Denise Clair, who waived her anonymity, won a civil case against footballers David Goodwillie and David Robertson after the Crown Office chose not to prosecute.
The judge in the civil court found the rapes had happened and awarded Ms Clair £100,000 damages.
T“The Conductors pledge themselves for impartiality, firmness and independence... Their first desire is to be honest, the second is to be useful... The great requisites for the task are only good sense, courage and industry”
FROM THE PROSPECTUS OF THE SCOTSMAN, 30 NOVEMBER 1816
he 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.
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.
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, 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.