Ending rape myths, not corroboration, will improve justice system, says expert

The Scottish Government is considering an end to the rule which obliges prosecutors to bring two independent sources of evidence in criminal cases.

Earlier this month the Speak Out Survivors lobby group said the “outdated law has no place in a modern justice system” and means child victims of sex abuse are amongst those unable to bring perpetrators to court.

The group is backed by Rape Crisis Scotland, whose chief executive Sandy Brindley wrote in the Sunday National yesterday that “many people in Scotland who have experienced sexual crime feel very let down by our criminal justice system”.

But Professor Pamela Ferguson, who holds the Chair in Scots Law at Dundee University, says it would be a “mistake” to assume that the law change would drive convictions up.

Instead she says ending myths about sex crime may be the answer.

She told The National: “Of 1878 reported cases of rape in 2016, there were only 98 convictions.

“All rape cases which are currently prosecuted require corroborated evidence – no case would reach the door of the court without it – yet juries do not convict in many of these cases.

“It is difficult to see how the removal of the corroboration requirement would improve this.

“What is needed is not so much a change in the law of evidence as a change in society’s attitudes. Mistaken beliefs about rape abound.”

Ferguson, who was appointed by the Scottish Government to the Post-Corroboration Safeguards Review, stated: “If someone tells us that they were robbed of their purse or wallet, we do not refuse to accept that they have been robbed unless they can show that they fought back, and the legal definitions of robbery and rape have in common that they do not include a requirement that the victim demonstrate this.

“Nevertheless, the idea that a rape victim ought to have put up a fight, and that a lack of physical injuries means that it can’t have been rape, is a persistent one.

“Rather than changing the law to abolish corroboration, perhaps what is needed is better public education, so that jurors try rape cases without resort to such misconceptions.”

The academic, who was previously a member of the Crown Office and Procurator Fiscal Service, added: “In 2014, a Scottish Social Attitudes Survey found that 23% of those surveyed believed that ‘women often lie about being raped’ – not that they ‘sometimes’ lie, or that there may have been a case in which a woman has lied, but that women ‘often’ lie.

“It is difficult to fathom why a person would put herself through the harrowing ordeal of describing a sexual encounter to the police, undergoing an intimate medical examination from a police doctor, having to repeat her account to the procurator fiscal, and then to a court, including being subject to rigorous cross-examination by defence counsel, if the allegation is untrue.

“Only a truly deranged person would do this. Some such persons undoubtedly exist but they represent a tiny proportion of rape complainers.

“There is no evidence to suggest that fabricated rapes are any more common than fabricated accounts of other crimes. It may be that the low conviction rate for rape itself perpetuates the myth that many rape allegations are false."

The Scottish Government said its research into corroboration will be completed next autumn and that it has “taken forward a wide range of measures to improve how the justice system deals with allegations of sexual offending” and improve victim support.