The Press and Journal (Inverness, Highlands, and Islands)
The answer to increasing conviction rates for rape is not political interference
The plan to banish juries from rape trials may get more guilty verdicts but not better justice.
There was an agreeable chink of glasses around our seats as people relaxed with favourite tipples in their hands. There was something surreal in the air. It was us – flying to Spain at 7.15am, after taking off from Scotland.
Holiday boozing had started already, and inhibitions were evaporating. Quite a few had begun in airport bars from around 4.30am, by the looks of the queue for the on-board loo.
Who are we to judge this exuberance, unless drink makes bad things happen? As it often does on holiday. Some fall over and end up in hospital; others are robbed. In extreme cases, some are entangled in sex assault cases.
We can’t get away from the fact that drinking is often a factor in sex allegations. But, if you banned drink, you would not end rapes. It must be the oldest crime in the book, along with murder, stretching back to cavemen. And modern cavemen still exist, as David Bowie reminded us, singing “look at those cavemen go” in his Life On Mars? track.
Lawyers are revolting in protest, because the Scottish Government is ripping apart long-standing court procedures to guarantee more rape convictions, as the current rate is abysmal. A laudable theory, but not in practice, if it’s fixed to such an extent that innocent “offenders” are jailed.
It appears inevitable that judges will be ordered to sit alone in rape cases, and pressured to deliver a required quota of guilty verdicts. The worldly-wise counterbalance of juries would be banished from court. It all seems vaguely dictatorial.
Back on board our jet, people felt condemned to misery after whisky ran out on the trolley.
A few hours later, we were in our resort: a smart Spanish marina complex, full of bars and restaurants.
I was struck by how many large groups of boozy men – young and old – were staggering about among the holiday crowds. That always makes me edgy.
Suddenly, the sea of bodies parted as an attractive young woman in high spirits sashayed through. I could see straight away what the fuss was about: she was wearing a sheer, see-through dress.
Men gawped, including me, while wives tut-tutted, including mine.
Meanwhile, she was busy posing for pictures, with a female pal clicking away. Nobody would bat an eyelid on a beach, but it seemed inappropriate around family restaurants and ice cream parlours.
I felt uncomfortable on her behalf. That’s not the same as saying how a woman dresses should affect how the world views her, in case you thought that was where I was heading. Nobody deserves that.
But opinions like this among jurors drawn from ordinary life are blamed for blocking too many convictions – attacked as “rape myths” in Scottish Government parlance.
Whether it be robbery or sexual assault, you cannot legislate against one caveman doing something of which the vast majority would never dream.
Rape and other sexual offences are notoriously difficult to prove without corroborating evidence, due to the “his word, her word” nature of it. But, if they were made easier, would they be mirrored by an inevitable upsurge in rape conviction appeals and damages claims?
If Holyrood succeeds in diluting the procedure, what’s next? They could continue tampering with the judiciary to achieve easy convictions in other crimes which are difficult to prove, such as fraud investigations, where large amounts of public cash disappear without trace.
Like everyone else, I pull my hair out over how to improve rape convictions without prejudicing fair trials. In the US, Donald Trump was flushed out into the open when E Jean Carroll went down the civil law route to win damages against him over rape allegations.
Ironically, it was a civil jury of six men and three women who ruled in her favour over assault damages against Trump, but not the alleged rape.
A civil case is an easier option, but the lower level of proof is matched by lesser punishment, without criminal conviction and jail.
If a pilot scheme for single-judge, no-jury rape trials gets under way in Scotland, it will be in the shadow of other artificially engineered, ideological projects which were spectacular disasters: named person, gender recognition reform, deposit return scheme, and so on.
So, the pilot itself will be on trial. If it’s unimpeachably fair to alleged victims and offenders alike, then I’ll welcome it. But, I fear it’s yet another case of two wrongs – the problem and the political solution – not making a right.
It appears inevitable that judges will be pressured to deliver guilty verdicts