“I am calling on the Scottish Government to give survivors a chance. There is no convincing argument to retain the outdated verdict, it’s time to scrap not proven for good.”
Miss M

LAST Tuesday, Rape Crisis Scotland and Miss M, the woman at the centre of a recent civil rape case, launched a campaign to end the not proven verdict. In 2016/17, there were

1878 rapes and attempted rapes reported to the police, but only 251 prosecutions and 98 convictions. Just 39% of cases which are prosecuted lead to a conviction. This is the lowest conviction rate for any crime. Nearly 30% of acquittals were not proven, compared with 17% for all crimes and offences.

Scotland is unique in having three verdicts – guilty, not guilty and not proven. Not guilty and not proven have the same impact – they are both acquittals, and there are no legal consequences for the accused if he/she gets a not proven verdict.

Underneath these statistics, there are people who have been devastated after receiving this verdict. In Miss M’s case, she received a not proven verdict in a criminal trial in 2015. Unable to come to terms with this, Miss M successfully sued Stephen Coxen in the civil courts, in what was the first civil damages action for rape following an unsuccessful criminal prosecution in almost 100 years.

She said: “I fear – as someone who received a not proven verdict and spent three long years fighting the Scottish legal system subsequently – that the not proven verdict means that those who are raped are unfairly left without justice and those who rape face no consequence, no sanction for their actions. What message does this send to society?”

Many rape complainers tell of how devastating it has been to get this verdict, after going through the ordeal of giving evidence in a criminal trial. At Rape Crisis Scotland, we have a real concern that this verdict may be contributing to guilty men walking free.

Some rape complainers we are in contact with told us that they felt getting this verdict meant that they were believed but that the jury weren’t willing to convict.

One said: “I’m essentially being believed about what happened but that there will be no consequences, the same as a ‘not guilty’ verdict. I feel like I’ve wasted my time. Feeling not protected is a big thing, it feels like I have to wait until he does something until the police protect me. He’s getting to live a life of not guilty even though the jury believed it happened but there just wasn’t forensic evidence.”

For others, it had the opposite impact. One, Clare, said: “The not proven verdict makes victims feel they are not believed, I felt I wasn’t believed and I was absolutely devastated when I got that verdict. I really hope that this verdict gets removed as it’s like the abuser gets away with it.”

What is clear is that many rape survivors experience the not proven verdict to be just as distressing as a not guilty verdict. We have had a number of survivors get in touch with us to tell us of their experience of going through the ordeal of a rape trial only to get a not proven verdict at the end of it. The overwhelming sense from many survivors is that they are left with a feeling of being denied justice.

In response to our campaign, a number of lawyers have proposed moving to a two-verdict system of proven and not proven. Theoretically attractive – it is, after all, for the Crown to either prove or not prove its case – it is my view that this would simply replicate many of the current problems with how the not proven verdict is used in rape trials. Fundamentally, it depends on whether you consider that there is a problem with wrongful acquittals in rape trials, and whether the not proven verdict plays a role in this.

There is increasing evidence from research using mock juries that juries may be reluctant to convict in rape cases, and that preconceived notions around how someone should react to rape may impact on their decision making. There are real worries that the existence of the not proven verdict gives juries in rape trials an easy out and contributes to the guilty men walking free

The End Not Proven campaign is supported by Engender, Scottish Women’s Aid, the Scottish Women’s Rights Centre and Zero Tolerance.

It is not the first campaign in Scotland to attempt to remove the not proven verdict. Joe Duffy, whose daughter Amanda was murdered in 1992, has campaigned for decades to remove the not proven verdict, after the trial of Francis Auld resulted in a not proven verdict. It was the subject of unsuccessful private member’s bills in 2004 and 2013 by Labour MSP Michael McMahon. Although the most recent private member’s bill failed, the Justice Committee indicated that in their view the verdict was on “borrowed time”. Last year, the Scottish Government commissioned research into jury decision making, including the use of the not proven verdict. This research is due to be published late next year.

In the meantime, it continues to be the case that many people in Scotland who have experienced sexual crime feel very let down by our criminal justice system. The End Not Proven campaign came just a week after a group of abuse survivors – Speak Out Survivors – launched a campaign to abolish the requirement for corroboration in Scottish trials.

All had been sexually abused as children, but none had seen their case get to court, due to the requirement in Scotland for corroboration. They argue that this is fundamentally unjust, that if their abuse had happened across the border in England there would not have been this technical barrier to their case getting to court.

The nature of the sexual crime, which most often takes place in private, with no witnesses, can make it particularly difficult to prosecute. For cases which get to court, the experience of giving evidence and cross examination can cause significant trauma.

In a recent Inspectorate of Prosecution review, sexual offence complainers described court as the most terrifying and degrading experience of their lives. One woman said that even though there was a guilty verdict, she would never go through the experience again. It is clear that reform is needed.

We need to be realistic, however. Legal reform alone is unlikely to significantly improve conviction rates for rape. As long as we have juries as the decision makers in rape trials, we need to address societal attitudes to rape – and to women’s sexuality more generally, as this is often what is being played out over the course of a rape trial. Last week saw a defence lawyer in Cork cause outrage by suggesting that the jury should take into account the fact that a rape complainer was wearing a thong with lace on the front, as her choice of underwear suggested she was “open to meeting and being with someone”.

Study after study has shown that a significant minority of the Scottish public blame women for rape in certain circumstances – if we have been drinking, flirting or engaged in a certain level of consensual sexual contact.

In the same week as the End Not Proven campaign launched, Edinburgh based clothing company Pieute released a new t-shirt, in collaboration with Miss M and tattoo artist Fidjit, highlighting that “No means no”. One of the responses to this t-shirt on instagram read: “The day after I was raped was easily one of the worst days of my entire life. I didn’t go to the police, I didn’t take anyone to court or seek support from anyone but my closest friends, and I will literally regret that forever. In case anybody needs to hear this like I needed to hear it – no means no. But also, sometimes ‘okay, fine’ really means no. And not saying yes means no. And not being able to say yes means no. Enthusiastic consent is not just sexy, it is a bare f*cking minimum requirement.”

If you have experience of a not proven verdict – positive or negative – email notproven@rapecrisisscotland.org.uk

Sandy Brindley is the chief executive of Rape Crisis Scotland